Key points

• The Copyright Amendment Bill 2025 (the Bill) seeks to amend the Copyright Act 1968 to:
  • establish an orphan works scheme to facilitate the use of orphan works by limiting the remedies that are available for infringing uses of orphan works, subject to specified search, record and notice requirements
  • clarify that the copyright exception relating to the performance and communication of copyright material in the course of giving educational instruction applies to online and hybrid educational environments
  • reallocate the powers to appoint certain members of the Copyright Tribunal of Australia
  • clarify that the provision governing duration of Crown copyright applies only to copyright material made or first published by or under the control of the Commonwealth or a state, and not to material later acquired from a third party
  • make other minor and technical changes.
• In 2023, the Attorney-General’s Department held four Ministerial roundtables which considered, among other topics, the introduction of an orphan works scheme and the use of copyright materials in remote learning environments.
• The Bill implements the key outcomes in the Outcome paper on orphan works and the Outcomes paper on remote learning from the Ministerial roundtables.
• The Bill has been referred to the Senate Legal and Constitutional Affairs Legislation Committee for inquiry and report by 19 December 2025.
• At the time of writing, the Senate Scrutiny of Bills Committee and the Parliamentary Joint Committee on Human Rights have not reported on the Bill.

Introductory Info

Date of introduction: 5 November 2025
House introduced in: House of Representatives
Portfolio: Attorney-General
Commencement: The day after Royal Assent.

Purpose of the Bill

The purpose of the Copyright Amendment Bill 2025 (the Bill) is to amend the Copyright Act 1968 (the Act) to:

•       establish an orphan works scheme

•       clarify the use of copyright material in remote learning environments

•       make other minor and technical changes, including reallocating the powers to appoint certain members of the Copyright Tribunal of Australia and clarifying provisions relating to the duration of Crown copyright.

Structure of the Bill

The Bill is comprised of 3 schedules:

•       Schedule 1 establishes an orphan works scheme to facilitate the use of orphan works by limiting the remedies that are available for infringing uses of those works

•       Schedule 2 clarifies that the copyright exception relating to the performance and communication of works in the course of giving educational instruction applies to online and hybrid educational environments

•       Schedule 3 makes other minor and technical changes, including reallocating powers to appoint certain members of the Copyright Tribunal of Australia and clarifying that the provision governing duration of Crown copyright applies only to copyright material made or first published by or under the control of the Commonwealth or a state, and not to material later acquired from a third party.

Background

In 1999, the Copyright Law Review Committee considered establishing a mechanism that allows use of copyright material when the owner cannot be found (orphan works). In its Simplification of the Copyright Act 1968 (Part 2) report, the Committee rejected a scheme to limit copyright remedies for untraceable copyright owners (p. 115, paragraph 7.94).

Following the introduction of the Copyright Amendment Bill 2006, the Parliamentary Library flagged that there was no provision for ‘orphaned works’ in the Bill and noted that this had become more of an issue since the Australia-United States Free Trade Agreement extended copyright duration from 50 to 70 years after the author’s death (p. 35). The Bills Digest also highlighted expectations that orphan works could increase as the number of electronic works increased (p. 35).

Since then, there have been several reports and reviews which considered the introduction of an orphan works scheme, including:

•       Nicholas Gruen, Engage: Getting on with Government 2.0—Report of the Government 2.0 Taskforce, (2009)

•       Attorney-General’s Department, Works of Untraceable Copyright Ownership—Orphan Works: Balancing the Rights of Owners with Access to Works, (2012)

•       Australian Law Reform Commission, Final Report on Copyright and the Digital Economy, (2013)

•       Productivity Commission, Report on Intellectual Property Arrangements, (2016).

In 2020, the then Minister for Communications, Cyber Safety and the Arts, Paul Fletcher, announced the Morrison Government’s intention to ‘set up a scheme to allow the use of material if the copyright owner cannot be found … [and] simplify and update copyright exceptions for educational and cultural institutions’. The announcement cited that ‘[the] need for change has been further highlighted during COVID-19, with schools, universities, cultural institutions and governments moving more services online’.

The Attorney-General’s Department (AGD) subsequently released an exposure draft of the Copyright Amendment (Access Reforms) Bill 2021 for public consultation. The draft Bill, amongst other things, proposed an orphan works regime and extended protection for use of copyright material in the course of educational instruction (Schedules 1 and 4). The Bill was not introduced into Parliament.

2023 roundtable meetings on copyright

In 2023, the AGD held four Ministerial roundtable meetings with key stakeholders on copyright priorities and emerging issues, including orphan works and remote learning.

Orphan works

The Outcome paper on orphan works stated that there was general agreement on the scope for introduction of an orphan works scheme, which could incorporate:

•       broad application without limits on particular types of copyright material, users, or types of use

•       due diligence requirements for users (such as performing a reasonably diligent search for the copyright owner, and related recordkeeping), with higher standards for certain types of materials and use

•       industry guidelines to support the application of diligence requirements, which also outline standards for sensitive or vulnerable works (such as Indigenous Cultural and Intellectual Property)

•       reasonable scope for owners to assert their rights if they become aware their work is being used (p. 2).

Remote learning

The Outcomes paper on remote learning stated that stakeholders agreed that the existing performance exception for educational instruction in the Act should be amended to cover:

•       an online or remote class

•       a parent or other person assisting a student or students with their lessons, and

•       a person other than a member of school staff (such as a member of the local community) who is involved in a class (p. 2).

On 11 April 2024, the then Attorney-General, Mark Dreyfus, announced the government’s intention to reform the Act ‘to make clear that existing rules for copyright materials in the classroom also apply when lessons are delivered online’. This announcement cited COVID-19 and subsequent movement to flexible, hybrid educational instruction models, as well as the importance of access to online learning for students who live in remote or regional areas. The announcement also stated an intention to undertake further consultation on the design of an orphan works scheme.

Policy position of non-government parties/independents

At the time of writing, there appears to have been no publicly available commentary on the Bill by non-government parties or independents.

Stakeholder comments

The Copyright Agency (a not-for-profit agency that collects and distributes copyright licence fees) welcomed the proposed amendments relating to the orphan works scheme and clarification regarding remote learning.

The National Catholic Education Commission (NCEC) welcomed the proposed amendments on remote learning, acknowledging the impact of the COVID-19 pandemic on how students access learning, and the need to assure teachers of their compliance with legislative requirements. The NCEC also called for measures to ensure further technological advancements (such as artificial intelligence (AI)) are similarly protected, to ‘bring Australia in line with jurisdictions such as Singapore, Canada, Japan, the United Kingdom, the United States and the European Union which all have public-interest exceptions for the use of AI in education’.

Independent Schools Australia (ISA) welcomed the Bill, stating that it ‘addresses a long-standing gap in the Act by extending the “show and tell” exception in section 28 to online and hybrid learning environments’. ISA added that the Bill is a ‘good first step’, and called for ‘a new public-interest fair-dealing exception for education, allowing schools to use digital and AI technologies in teaching without risking copyright infringement’.

The Australian Society of Authors previously expressed support for amendments relating to use of copyright materials in remote learning and the introduction of a new orphan works scheme, when it was first announced in 2024.

Key issues and provisions

Introducing an orphan works scheme

Item 1, Schedule 1 inserts proposed Division 2AAA into Part 5 of the Act, which deals with remedies and offences. Proposed Division 2AAA, comprising proposed sections 116AAB to 116AAG, would establish an orphan works scheme by limiting the availability of remedies for infringing uses of orphan works in specified circumstances. The purpose of this, as identified in the Explanatory Memorandum (EM), is to:

… provide prospective users with greater legal certainty and … open up access to a larger collection of cultural, historical and educational works held by our cultural and educational institutions for the benefit of researchers, educators, students, family historians, creators and the wider Australian community (p. 2, paragraph 6).

Proposed section 116AAC defines infringing use, for the purposes of the new Division, as use (including the doing of an act) that constitutes an infringement of copyright in copyright material.

Conditions for limiting remedies

Proposed section 116AAE sets out the conditions that must be satisfied for the purposes of imposing a limitation on remedies for infringing uses of orphan works, namely that:

•       a reasonably diligent search for the owner(s) of copyright in the copyright material was conducted (proposed subsection 116AAE(2))

•       the search was conducted within a reasonable period before the infringing use (proposed subsection 116AAE(3))

•       a record of the search was maintained for a reasonable period (proposed subsection 116AAE(4))

•       at the time of the infringing use, the defendant could not identify and locate the owner(s) of the copyright (proposed subsection 116AAE(5))

•       notice in relation to the infringing use was given in a clear and reasonably prominent manner, stating that:

–      the owner(s) of the copyright could not be identified and located, and

–      the notice is being given for the purposes of proposed Division 2AAA (proposed subsections 116AAE(6)-(7)).

Reasonably diligent search and timing of the search

The defendant (that is, the person who used the orphan work) bears the burden of proving that the above conditions are satisfied (proposed subsection 116AAD(5)). The EM explains that this is due to the likelihood that the evidence required to prove these matters will be in the possession of the defendant, and the difficulty of proving these matters by the copyright owner (p. 10, paragraph 22).

What will constitute a reasonably diligent search is not defined, but proposed subsection 116AAE(8) provides a non-exhaustive list of matters that may be taken into account in determining if a search for the copyright owner(s) was conducted in a reasonably diligent manner within a reasonable period before the infringing use. These are:

•       the nature of the copyright material

•       the nature, purpose and character of the infringing use

•       whether the copyright owner(s) is likely to be located in a foreign country

•       the actual or likely impact of the infringing use on the copyright owner(s)

•       the way the search was conducted

•       any relevant industry guidelines

•       any matters determined by the Minister, by legislative instrument, under proposed subsection 116AAE(13).

Regarding the standard and timing of search, the EM states that:

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.

…

The search should be conducted as close to the time of use as possible to make the most of available up-to-date technologies and the latest information as to the potential identity or location of the copyright owner. In this way, it is intended to lessen any risk that a copyright owner may become identifiable or locatable in the time between the search being conducted, and the work being used.
(p. 11, paragraphs 25–26)

Record of search

Proposed subsection 116AAE(10) lists, non-exhaustively, several matters which are permissible considerations in determining if a record of search was maintained for a reasonable period. These are the duration of the infringing use, when the infringing use ceased and any matters determined by the Minister, by legislative instrument, under proposed subsection 116AAE(14).

Identifying and locating the owner(s)

Proposed subsection 116AAE(5) would require that, at the time of infringing use, the defendant ‘could not identify and locate the owner or owners of the copyright’ (emphasis added).

According to the EM, proposed subsection 116AAE(5):

… requires that the owner of the copyright material must not have been identifiable or locatable at the time of the infringing use. This is to ensure that only uses of genuinely orphaned works get the benefit of a limitation of remedies under the scheme. An example of where a copyright owner cannot be identified could include a personal photograph taken or a journal kept during a time of historical significance, such as those held within Australia’s cultural institutions like the Australian War Memorial, and which are of such an age that they have no identifying features enabling the copyright owner to be identified. An example of where a copyright owner cannot be located could include a magazine that has been long out of print, where the publisher is the copyright owner but is no longer in operation, and has no identifiable beneficiaries. In those circumstances, the copyright owner is identifiable (the publisher), but they cannot be located as they no longer exist. (emphasis added) (p. 13, paragraph 29)

Notice of search

Proposed subsection 116AAE(7) provides that a notice is taken to be reasonable prominent if it complies with any requirements determined by the Minister, by legislative instrument, under proposed subsection 116AAE(12).

The EM provides that ‘[w]hat will be considered clear and reasonably prominent will depend on the particular circumstances of the use’ (p. 13, paragraph 30). Examples of such notice include notice on the edition notice page of a published book incorporating an orphan work and pop-up notices on a website incorporating an orphan work (p. 13, paragraph 30, EM).

Remedies

Proposed subsection 116AAD(2) would require a court not to grant damages or an account of profits, additional damages, or any other monetary relief against a defendant for infringing uses of orphan works, where the conditions provided in proposed section 116AAE are met.

Proposed subsection 116AAD(3) would allow courts to make an order for reasonable payment in respect of infringing use where the conditions in proposed section 116AAE are met. The EM explains that

What is considered a ‘reasonable’ payment will depend on the particular circumstances of each case, and may depend on a range of factors including the type of work, the purpose for which it was created, whether it was used in whole or in part and the purpose for which it was used. (p. 10, paragraph 21)

An order for reasonable payment cannot be made where the defendant:

•       used the copyright material solely for private and domestic use and

•       has either

–      promptly ceased use of the copyright material or

–      entered into an agreement with the copyright owner(s) for continuing use of the material (proposed subsection 116AAD(4)).

The EM states that ‘prompt’ cessation of use is to be interpreted in relation to the event that a copyright owner is later identified or located, and that:

The limitation in remedies for private and domestic use is intended to only cover personal use by the user and members of their family or household, and would not extend, for example, to any social uses such as sharing the material via social media or incorporating the material into a new product. (p. 10, paragraph 20)

Agreements and court orders for continuing use

The Bill makes provision for a defendant’s continuing use of copyright material in an action for infringement of copyright against a defendant’s infringing use (proposed section 116AAF).

Where an action for copyright infringement is brought against a defendant, and the conditions are met so that proposed section 116AAD limits or previously limited the remedies available to a copyright owner, then proposed section 116AAF applies regarding continuing use of the copyright material (proposed subsection 116AAF(1)).

Continuing use is defined in proposed subsection 116AAF(8) as ‘use by the defendant that continues beyond the infringing use that was the subject of an action for infringement of copyright mentioned in [proposed] subsection [116AAF(1)]’.

The defendant and copyright owner(s) could either agree to terms for the continuing use of the copyright material or seek a court order if an agreement cannot be reached (proposed subsections 116AAF(2)-(3)).

The court may make an order that either

•       fixes reasonable terms for the continuing use of the copyright material by the defendant, or

•       grants an injunction in terms considered appropriate by the court (proposed subsection 116AAF(4)).

Several matters are listed non-exhaustively for the court to consider in determining reasonable terms for continuing use of the material (proposed subsection 116AAF(5)-(6)).

Where agreed or court-ordered terms are in place and complied with, copyright in the copyright material would not be infringed (proposed subsection 116AAF(7)).

Compensation for the acquisition of property

The Commonwealth is required to pay a reasonable amount of compensation to a person if the operation of proposed Division 2AAA would result in the acquisition of property from that person otherwise than on just terms, and would therefore be invalid under paragraph 51(xxxi) of the Constitution (proposed subsection 116AAG(1)).

Where the amount of compensation is not agreed between the Commonwealth and the person mentioned in proposed subsection 116AAG(1), then that person may institute proceedings in the Federal Court of Australia, or the Supreme Court of a state or territory for recovery of compensation from the Commonwealth as determined by the court (proposed subsection 116AAG(2)). This is a standard provision that appears in many Acts (such as the recently enacted Australian Centre for Disease Control Act 2025) to ensure constitutional validity.

Clarifying copyright exemptions for remote learning environments

As a general principle, copyright in a work is infringed when the work is performed in public or communicated to the public without the copyright owner’s permission. Section 28 of the Act, however, provides an exception for the performance and communication of copyright material in the course of educational instruction.

Schedule 2 would amend section 28 to clarify its application to remote learning environments. In particular, item 17, Schedule 2 inserts proposed subsections 28(8)-(10) to clarify when a person is ‘taking part in’ educational instruction and the impact of the manner in which that instruction is provided. The proposed amendment addresses the differing viewpoints regarding the application of section 28 to remote learning environments highlighted in the Outcomes paper on remote learning (pp. 3–4).

Persons taking part in educational instruction

Proposed subsection 28(8) provides that persons taking part in educational instruction for the purposes of section 28 include a person who is assisting or otherwise supporting:

•       a student receiving educational instruction, or

•       a teacher or another person giving educational instruction.

The EM states that this is intended to cover teacher’s aides, trainee teachers, IT support persons, persons assisting or supporting students with their lessons, and mental health support workers (pp. 21–22, paragraph 76).

The EM emphasises that this would not apply to persons attending broader school events (such as school concerts) as section 28 is limited only ‘to performances or communications conducted in the course of educational instruction’ (emphasis in original) (p. 22, paragraph 77).

Location of learning environment

Proposed subsection 28(9) provides that section 28 applies to educational instruction conducted in person, online or in a hybrid format. The intended effect is that the performance or communication of works or other subject‑matter in the course of educational instruction, regardless of the medium of that instruction, is deemed not to be a public performance or communication (p. 22, paragraphs 78–79, EM).

Items 1-16 in Schedule 2 would further amend section 28 to clarify its application to educational instruction delivered in person, online, or in a hybrid format. For example, the protections in paragraphs 28(1)(a), (6)(a) and (7)(a) are currently limited to performances or communications ‘in the presence of an audience’, which the EM explains ‘could be read as requiring the physical presence of an audience’ (p. 17, paragraph 49). Items 1, 9 and 13, Schedule 2 replace references to ‘in the presence of’ an audience in those provisions with ‘to’ or [heard] ‘by’ an audience to ensure the provisions cover online and hybrid classes.

Where currently the deeming provisions refer to the place ‘where’ or ‘at’ the educational instruction is given, the amendments proposed by the Bill would  refer to the place ‘for which’, ‘for’, or ‘from’ which the educational instruction is given (items 4, 5, 6, 7, 12 and 16, Schedule 2).

While the proposed amendments would ensure that section 28 covers online and hybrid classes, proposed subsection 28(10) provides that persons taking part remotely in educational instruction with the aid of technology would only be protected if the person is taking part in the educational instruction at the same time, or at substantially the same time, as the instruction is given. The EM explains that section 28 currently captures live class delivery, and that the Bill is not intending to change that (p. 22, paragraph 81).

The proposed amendments would therefore not ‘apply to a person taking part in educational instruction given via a delayed streaming of previously recorded educational instruction’ (p. 22, paragraph 81, EM). The inclusion of ‘substantially the same time’ is, however, intended to capture slight technical delays in transmission (pp. 22–23, paragraph 82, EM).

Educational instructors

Additionally, items 2, 10, 14, Schedule 2 amend paragraph 28(1)(b), subparagraph 28(6)(a)(i) and subparagraph 28(7)(a)(i) to clarify that a person other than a teacher or student may perform or communicate the work in the course of educational instruction. The EM explains that this is to allow people delivering not-for-profit educational instruction to benefit from the deeming provisions where other section 28 criteria are met, and that those delivering commercial or for-profit educational instruction would not benefit from this change (pp. 17‑18, paragraphs 52–56; pp. 20–21, paragraphs 66–67, 70–71, EM).

Compensation for the acquisition of property

Item 18, Schedule 2 provides for the payment of ‘just terms’ compensation by the Commonwealth if the proposed amendments result in the acquisition of property within the meaning of paragraph 51(xxxi) of the Constitution. If an agreement on the amount of compensation cannot be reached between the Commonwealth and the person owed compensation, then that person may institute proceedings in the Federal Court of Australia, or the Supreme Court of a state or territory. As set out above, this is a standard provision that appears in many Acts  to ensure constitutional validity.

Reallocating the power to appoint certain Copyright Tribunal members

Part 1, Schedule 3 would reallocate the powers to appoint certain members of the Copyright Tribunal of Australia (Tribunal). Specifically, it changes the persons responsible for appointing the acting President and the Registrar of the Tribunal.

Appointment of the acting President

Currently, section 142 of the Act empowers the Governor-General to appoint the senior Deputy President available to act in the office of President:

•       during a vacancy in the office, or

•       during any period when the person holding that office is absent from duty, Australia or is for any reason unable to perform the functions of that office.

Item 1, Schedule 3 would amend section 142 to change the appointing authority from the Governor-General to the Minister. The EM states that this to ‘reduce delay and ensure business continuity’ as the current requirement for the Governor-General to appoint the acting President ‘adds a high level of complexity for a temporary appointment’ (p. 24, paragraph 86). The proposed amendment would not impact the existing procedure for appointments as the seniority of Deputy Presidents is determined in accordance with section 141A. The EM explains that the Governor-General’s power to appoint the President under section 139 would also not be affected by the proposed amendment (p. 24, paragraph 87).

Item 5, Schedule 3 contains transitional provisions to ensure that an acting appointment made by the Governor–General under section 142, which is in force immediately prior to commencement of item 5 would retain its effect after the commencement of item 5 as if it had been made by the Minister under the amended section (p. 25, paragraph 91, EM).

Appointment, termination and resignation of the Principal Registrar

Subsection 170(2) of the Act provides that the Registrar is to be appointed by the Minister by written instrument. The Minister also has the power to terminate the appointment of the Registrar under subsection 170(5). Items 3 and 4, Schedule 3 would amend subsections 170(2) and (5) so that the Chief Executive Officer and Principal Registrar of the Federal Court of Australia would have the power to appoint and terminate the appointment of the Registrar instead of the Minister.

Item 3, Schedule 3 would also amend subsection 170(4) so that the resignation of the Registrar is affected by giving written notice to the Chief Executive Officer and Principal Registrar of the Federal Court of Australia, instead of to the Minister.

The EM explains that this aligns the appointment of the Registrar with the appointment of other Australian court registrars (p. 24, paragraph 90). While the Tribunal is not an Australian court, the EM notes that the role of the Registrar is to support the President, ‘who is required to be a judge of the Federal Court’ (p. 24, paragraph 90), and that the role of Registrar has ‘historically been undertaken by a District Registrar of the Federal Court’, with such registrars appointed by the Chief Executive Officer and Principal Registrar of the Federal Court (pp. 24–25, paragraph 90).

Item 6, Schedule 3 contains transitional provisions to ensure that a written instrument of appointment made by the Minister under subsection 170(2), which is in force immediately before the commencement of item 6 would retain its effect after the commencement of item6 as if it had been made by the Chief Executive Officer and Principal Registrar of the Federal Court of Australia.

Clarifying the duration of crown copyright in certain copyright materials

Part 4, Schedule 3 would clarify the effect that Crown ownership of certain copyright materials has on the duration of copyright in those materials.

Items 32 to 34, Schedule 3 would amend sections 33, 93 and 96 of the Act to clarify that the duration of copyright in original works, sound recordings and films, and published editions of works, respectively, have effect subject to Part VII, which deals with Crown copyright.

Part VII vests ownership of copyright in copyright material made or first published by, or under the direction or control of, the Commonwealth or a state in the Commonwealth or the respective state. It also provides that the duration of Crown copyright in original works, sound recordings or cinematograph films subsists until 50 years after the calendar year in which the material is made (section 180).

The proposed amendments would ensure that the duration of Crown copyright is calculated by reference to section 180 and not the provisions in Parts III and IV relating to the general duration of copyright (p. 26, paragraph 99, EM).

Item 36, Schedule 3 would clarify that section 180 applies only to original works, sound recordings or cinematograph films that the Commonwealth or a state:

•       owns, or did own, by virtue of the provisions of Part VII, or

•       would own but for an agreement with the relevant author or maker under section 179, which vests copyright in the author, maker or a third party (p. 26, paragraph 100, EM).

The effect of the proposed amendment is that where original works, sound recordings or films created independently of the Crown are later acquired by the Crown, the duration of copyright in those materials would not change by virtue of the Crown having subsequently acquired the copyright in those materials (p. 26, paragraph 101, EM). According to the EM

The proposed amendments address the risk of unintended consequences associated with Commonwealth or State acquisition shortening copyright duration if the courts favoured a different interpretation, as Crown copyright generally lasts for a shorter period than the duration of other copyright material. Unintended consequences could include the early expiration of copyright and, consequentially, extinguishment of the ‘moral rights’ of the original creator (such as the right of attribution as author, the right not to have authorship falsely attributed and the right of integrity: Part IX).

Conversely, the duration of copyright in copyright material owned by the Commonwealth or a state by virtue of the provisions of Part VII will remain governed by section 180 even if ownership is transferred to another person (p. 26, paragraph 102, EM).

Item 37, Schedule 3 provides that the proposed amendments made by Part 4, Schedule 3 would apply to copyright material made before, on or after commencement. The EM notes that ‘[t]his provision does not have the effect that the amendments made by Part 4 relating to duration of Crown copyright have retrospective operation’ (p. 26, paragraph 103).