By Claire Ramsay and Jay-R Estavillo

The Copyright Act 1968 (Cth) was amended in April 2026 to introduce Australia’s first orphan works scheme. An ‘orphan work’ is copyright material for which the owner cannot be identified or located for the purpose of obtaining permission to use the material. The amendments facilitate the use of orphan works, while limiting the remedies available copyright owners who are later identified or located.

Orphan Works Scheme

The introduction of the orphan works scheme follows several consultations regarding orphan works, most recently as part of the Attorney-General Department’s Ministerial Roundtable meetings in 2023-2025.

The scheme was included in the Copyright Amendment Act 2026 (Cth), and applies only to use of an orphan work on or after 2 April 2026. It does not apply retrospectively, so does not cover past use of what may be considered an orphan work.[1]

The scheme does not create a free licence or legal exception permitting use of orphan works; such works remain protected by copyright. Rather, it allows for use of such works by those who comply with the scheme, and limits the legal remedies available if a copyright owner later emerges.  

To rely on the scheme, a user must satisfy several conditions. First, the user must undertake a reasonably diligent search within a reasonable period before the material is used, and that search must fail to identify or locate the copyright owner. Secondly, the user must maintain formal records of the search for a reasonable period. Finally, the user must provide a clear and prominent notice stating that the work is being used under the orphan works scheme.

In the past, the best practice approach to the use of orphan works in Australia was one of risk assessment and management.[2] This scheme is intended to provide greater legal certainty for prospective users of orphan works, and improve access to materials held by Australian cultural institutions. In turn, it is hoped that this may enable a broader range of scientific, literary and artistic works to be made available to the public.[3]

Importantly, the scheme also seeks to protect the interest of copyright owners. The requirement to undertake a diligent search may assist in reconnecting owners with works that have become unintentionally orphaned. Although, it remains to be seen what constitutes a “reasonably diligent search” in practice. In addition, if a copyright owner is subsequently identified or located, they can still come forward and assert their rights.[4] However, the remedies for infringement against a person who has used the material under the scheme are limited. These include a court order for a “reasonable payment” in respect of past and continuing use, or an injunction preventing continued use. However, damages, an account of profits, or other monetary relief is not available.

Takeaway

The orphan works scheme represents a significant development in Australian copyright law. By reducing the risk associated with using works whose owners cannot be identified or located, the scheme is intended to increase access to culturally and historically important materials; while at the same time preserving a pathway for copyright owners to enforce their rights if they later come forward. The practical scope of the scheme is likely to depend on how courts interpret the requirement to undertake a “reasonably diligent search”.

[1] https://www.copyright.org.au/browse/book/ACC-Orphan-Works-INFO101

[2] https://www.copyright.org.au/browse/book/ACC-Orphan-Works-INFO101

[3]https://www.ipaustralia.gov.au/tools-and-research/professional-resources/data-research-and-reports/australian-ip-report-2026/copyright/key-copyright-policy-priorities.

[4] https://ministers.ag.gov.au/media-centre/important-reforms-australias-copyright-framework-pass-parliament-01-04-2026