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The Federal Government recently announced Australia's first statutory orphan works scheme by way of the Copyright Amendment Bill 2025 (Cth) (Bill).
Orphan works refer to copyright materials for which the owner cannot be identified or located. The policy considerations on orphan works are discussed at length in an earlier blog post, Proposed Copyright Reform in Australia – Limited Liability Scheme for Use of Orphan Works.
The Bill also clarifies the Copyright Act 1968 (Cth) (Act) to permit use of copyright materials by schools in online teaching environments, as well as outlining other minor technical amendments to the Act.
Reasonably Diligent Searches
The Bill adds Division 2AAA to the Act, which limits the remedies available to copyright owners for copyright infringement if an owner could be identified or located at the time of infringement. Specifically, the Court cannot grant relief against an alleged infringer if:
- They conducted a "reasonably diligent search" for the copyright owner;
- The search was conducted within a reasonable period before the infringing use;
- They maintained a record of the search;
- The copyright owner could not be identified or located at the time of the infringing use and therefore permission could not be obtained; and
- A clear and reasonably prominent notice was given in relation
to the infringing use, stating that:
- The copyright owner could not be located or identified; and
- The orphan works scheme applies.
On the point of "reasonably diligent" searches, the Explanatory Memorandum explained:
Higher standards of search would be reasonably expected for types of material and uses that present a higher level of risk to rights holder interests, such as commercial uses, more vulnerable materials (including photographs and images) and culturally sensitive materials. Higher standards of search may also be required if the work is a foreign work and the copyright owner is likely to be residing overseas.
Implications of the Scheme
If a copyright owner is identified or located after allegedly infringing use, the scheme will allow the rights holder to seek reasonable payment for past use and for the parties to negotiate terms for continuing use. The scheme also empowers the Courts to set reasonable terms for continuing use or to provide injunctive relief.
However, it is explicitly stated that the scheme is not intended to support large-scale uses of orphan works for training large language models or other generative AI. Instead, the reasonable diligence conditions are likely to be too "administratively burdensome, time consuming and impractical".1
Overall, the proposed orphan works scheme will provide copyright users with greater legal certainty and increased access to a larger collection of cultural, historical and educational works. Rights holders may also earn new income from works that have been unknowingly or unintentionally orphaned, but with which they are reunited as the owner through the diligent search requirements.
What Happens Next?
The Bill has been referred to the Legal and Constitutional Affairs Legislation Committee for inquiry, and the committee's report is due on 19 December 2025.
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.
