Unlocking the past with Australia’s new Orphan Works Scheme

On 1 April 2026, the Australian Government passed the Copyright Amendment Act 2026 (Cth) that established an ‘orphan works’ scheme. The purpose of the scheme is to limit the remedies that may be available for a copyright infringement where the owner or owners could not be identified and located at the time of infringing use. In a media release by Michelle Rowland MP, the aim is to promote ‘cultural, creative, and scientific progress by making them available to benefit the Australian people, while also helping to provide greater legal certainty.’

Orphan works are copyright material where an owner cannot be identified or located by someone wishing to obtain rights to use their work. Discovery of an orphan work issue can block the reuse of archival content in many projects, due to fears that a rights holder will later emerge and demand substantial compensation or withdrawal of the material after the project has been published or distributed.

The Australian Law Reform Commission (ALRC) proposed that the Copyright Act 1968 (Cth) be amended to limit remedies available for a copyright infringement where a defendant establishes that the work is an ‘orphan work’, and a reasonably diligent search was conducted for the rights holder, and the rights holder was not found.

The ALRC identified that the scope of the problem is perpetuated in the digital age where works are often placed online without identifying rights information.

Galleries, libraries and museums drew attention to the problem, with several unpublished items in their collections being orphan works. Some institutions have suggested up to 70% of their collections comprise of orphan works.

Public broadcasters such as the ABC and SBS also identified frequent issues, including roadblocks particularly relating to literary works, which require copyright clearance to broadcast. Broadcasters also identified issues with using archival material, such as audio-visual footage or photographs, where the owner could not be found.

The inability to use such works means that their productive and beneficial uses are lost, and a diverse range of owners and users are affected. The Australian Attorney-General’s department review of orphan works noted several potential benefits, most notably, research, education, culture and creation.

Previously, there was no specific exception in the Copyright Act for the use of orphan works and, without an exception or an appropriate licencing solution, an orphan work cannot be used until it falls into the public domain at the end of the copyright term.

Limited exceptions include for fair dealing, through a statutory licence or for educational purposes.

While the scheme does not make use of orphan works lawful, it imposes a limitation on remedies which the creator can pursue against the defendant where certain threshold conditions are complied with.

These conditions are that:

• The defendant conducted a ‘reasonably diligent’ search, for example on copyright registers and publisher databases
• The search was conducted within a reasonable period before the infringing use
• A record of the search was maintained for a reasonable period
• At the time of infringing use, the defendant couldn’t identify or locate the owner or owners of the copyright
• Notice was given in relation to the infringing use stating that the owner could not be identified and located

A reasonably diligent search can be satisfied by accounting for the nature of the copyright material, the purpose and character of the infringing use, the actual or likely impact of the infringing use, the search method and relevant industry guidelines. For the purposes of determining a reasonably diligent search, any matter determined by the minister may be considered.

Practically, this reform could unlock decades of unused footage, photographs and recordings that have been effectively ‘locked away’ due to legal uncertainty. Film and TV producers will be able to unlock footage, streaming platforms can access older content, documentaries can more readily rely on historical material and music sampling culture can be expanded greatly.

Below are some valuable tips if you wish to use other’s material and an owner can’t be found:

• Keep detailed search records
• Follow industry guidelines
• Double check before publishing

The introduction of the orphan works scheme marks a significant shift in Australian copyright law, particularly for the entertainment and media industries.

In an industry built on remixing the past to create the future, orphan works may finally have a second life.