Orphan works scheme

In April 2026, the Copyright Act was amended in relation to ‘orphan works’: copyright material for which a copyright owner cannot be found.

The new orphan works scheme:

• does not provide a defence to copyright infringement
• instead, limits the remedies available to a copyright owner who establishes copyright infringement (and so is similar to the ‘innocent infringement defence’ in section 115(3) of the Copyright Act)
• therefore applies to scenarios in which a copyright exception or statutory licence does not apply

Conditions for limitation of remedies

1. reasonably diligent search for copyright owner/s: within a reasonable period before the infringing use
2. record of the search: maintained for a reasonable period
3. copyright owner/s not identified and located: by the defendant, at the time of the infringing use
4. notice: given in a clear and reasonably prominent manner, stating that:

• • copyright owner/s could not be identified and located; and
  • notice is given for the purposes of Division 2AAA of the Copyright Act

Limitation of remedies if conditions met

• a court may order reasonable payment but not damages or account of profits
• there may be no payment if the use was solely private or domestic and:
  • the defendant promptly ceased use of the copyright material; or
  • the defendant and copyright owner/s have entered into an agreement for the continuing use of the copyright material

Factors relevant to ‘diligent search’

• nature of the copyright material
• nature, purpose and character of the infringing use
• whether copyright owner/s are likely to be located in a foreign country
• actual or likely impact of infringing use on copyright owner/s
• the way the search was conducted
• any relevant industry guidelines

Industry guidelines

There are no industry guidelines yet agreed between representatives of copyright owners and representatives of people who may use the scheme, but these may be developed.

Orphan works in the education sector

Statutory licences and copyright exceptions that allow teachers to copy and share copyright materials for educational purposes do not require teachers to conduct a diligent search for copyright owners.

The orphan works scheme allows a teacher to ‘choose’ to:

1. infringe copyright rather than rely on the education statutory licence; and
2. conduct a diligent search that is not required by the education statutory licence; and
3. provide a clear and prominent notice that a copyright owner could not be identified;

in which case a copyright owner would be entitled to reasonable payment under the orphan works scheme.

This provision was sought by Copyright Advisory Group, which represents education authorities in the school and TAFE sectors (primarily for negotiation of copyright fees), but it is difficult to envisage why a teacher would make this ‘choice’.

Orphan works in libraries and other cultural institutions

There are numerous special exceptions in the Copyright Act for libraries and other cultural institutions. None expressly require a diligent search for a copyright owner. However, a diligent search could be relevant to the application of section 200AB (special case or flexible dealing exception), which can allow uses of copyright material that are not covered by other special exceptions.

There are also special exceptions for people who copy and share copyright material that they have acquired from libraries and other cultural institutions. For example, there are special exceptions for research, criticism/review, parody and satire. The orphan works scheme may apply in circumstances in which a special exception does not apply.

April 2026