Two significant reforms have been introduced to the Copyright Act 1968 (Cth) (Act) by the 2025 Amendment Bill (Bill), relating to orphan works and remote learning.
First, the Bill introduces a scheme that limits relief against a person using orphan works – copyright material for which the owner(s) cannot be identified or located – where:
- a reasonably diligent search for the copyright owner is undertaken within a reasonable time before use,
- the copyright owner cannot be identified or located to grant permission; and
- clear notice is given that the work is being used under the scheme.
The Courts’ interpretation of a “reasonably diligent search” is well understood in a trade marks context (applying to the concept of “good faith”) and will likely apply to the orphan works scheme.
While the user of the orphan work may be ordered by a court to make a “reasonable payment” where the copyright owner later emerges, the scheme also provides for the parties to negotiate terms for continuing use, or for a court to set reasonable terms. The scheme aims to balance the rights of copyright holders and prospective users, and to facilitate access to a larger collection of material. It is estimated that up to 70% of library collections in Australia are orphan works.
Second, the Bill amends section 28 of the Act, which provides that the performance and communication of works in the course of educational instruction does not require permission or payment, given that certain conditions are met. The amendments clarify that the section applies to online or hybrid classes, and that parents or guardians may assist in such lessons.
The Bill has been referred to the Legal and Constitutional Affairs Legislation Committee with the amendments likely coming into effect in early 2026.
If you have any questions about the Copyright Amendment Bills please contact our Intellectual Property team.