{"id":"BILL-r7402","name":"Copyright Amendment Bill 2026","slug":"copyright-amendment-bill-2026","collection":"bill","jurisdiction":"commonwealth","status":"in_force","isInForce":true,"actNumber":null,"makingDate":null,"administeringDepartment":null,"currentVersion":{"id":446055,"registerId":"commonwealth-BILL-r7402-current","compilationNumber":null,"startDate":"2026-05-05","status":"royal_assent","reasons":null,"registeredAt":null},"sections":[],"analysis":{"summary":{"status_summary":"The Copyright Amendment Bill 2026 received royal assent on 1 April 2026 and is now in force.","complexity_score":5,"likely_questions":["What conditions must be met to limit remedies for using orphan works?","How does the bill support the use of copyright materials in online and hybrid classrooms?"],"complexity_factors":["New orphan works scheme with search and notice requirements","Clarification of section 28 for online educational instruction"],"plain_english_summary":"The Copyright Amendment Bill 2026 amends the Copyright Act 1968 to address several issues in copyright law. It introduces provisions for orphan works, clarifies rules for educational use of materials, and includes some technical updates.\n\nThe orphan works scheme allows users to employ copyright materials when the owner cannot be identified or located. To qualify for limited remedies, a user must conduct a reasonably diligent search for the owner before using the material. They must also keep a record of the search for a reasonable period and give clear notice that the owner could not be found. If these conditions are met, courts will not award damages or an account of profits for the infringement, although they may order a reasonable payment in some cases. Private and domestic uses have additional protections if the user stops promptly.\n\nThe bill clarifies the scope of section 28 of the Copyright Act. This section provides an exception for performing or communicating copyright material during educational instruction. The amendments confirm that this exception applies to online and hybrid educational environments. It includes assistance from people supporting students or teachers, and covers instruction given in person, online, or in a mix of both. However, it applies only to live or near-live participation, not to delayed recordings.\n\nTechnical amendments in the bill reallocate appointment powers for the Copyright Tribunal of Australia. The Minister can now appoint an acting President, and the Chief Executive Officer of the Federal Court handles the Registrar. The bill also specifies that Crown copyright duration rules apply only to materials created or first published under government control, not to those acquired later.\n\nThese changes affect educational institutions such as schools and universities, cultural organisations holding collections, researchers, and individual users of copyright materials. They provide greater certainty for using materials in teaching and for accessing hard-to-trace works.\n\nThe bill was introduced on 5 November 2025 in the House of Representatives. It passed both the House and the Senate, receiving royal assent on 1 April 2026 as Act number 29 of 2026. The provisions commence the day after royal assent."},"flash_summary":{"complexity_score":6,"scope_assessment":{"changed":false,"description":"The Act implements the orphan‑works regime, clarifies the education exception for online/hybrid instruction, and makes technical and administrative changes — all of which align with the stated original policy aims. It does not materially expand beyond those purposes: the orphan‑works provisions apply the promised limitation on monetary remedies subject to diligence/notice tests; the education amendments extend the scope to online/hybrid delivery as foreshadowed; and the administrative and Crown‑copyright clarifications are technical. No significant new substantive policy areas or unrelated powers were added that change the legislation’s original scope."},"complexity_factors":["New Division 2AAA added with multiple linked sections (116AAB–116AAG) introducing conditional limits on remedies","Several undefined or open‑ended standards (e.g. \"reasonably diligent search\", \"reasonable period\", \"reasonable payment\") to be interpreted by courts and administrative instruments","Ministerial powers to set detailed requirements by legislative instrument for notice, search matters and recordkeeping (116AAE(12)–(14))","Burden of proof placed on defendant (116AAD(5)) creating litigation‑positioning complexity","Cross‑references to existing Act provisions (eg. interaction with licensed copying provisions at 113Q(2A)) and to Part VII (Crown copyright) creating interpretation traps","Multiple application/transitional provisions and three separate Schedules making changes in different domains (orphan works, education, appointments/administration/Crown copyright)","Administrative publication regime change (Gazette → notifiable instrument) affecting many discrete provisions across the Act","Three repeated constitutional compensation clauses (for orphan works, remote learning and Crown copyright) adding a fiscal/constitutional layer","List‑style \"matters to be taken into account\" in several places (116AAE(8) and (10), 116AAF(5)) increases fact‑specific analysis and evidentiary complexity","Technical appointment and registrar changes that interact with court administrative practice (s142, s170 amendments) and related transitional rules"],"plain_english_summary":"**What this law changes (mechanics)\n\n- Creates a new \"orphan works\" regime (Division 2AAA, sections 116AAB–116AAG of the Copyright Act). Under that regime, if a person wants to use a copyrighted work and genuinely cannot identify or locate the copyright owner, the court is prevented from awarding most monetary remedies (for example, damages or an account of profits) provided the user satisfies a set of conditions. The court may still order a \"reasonable payment\" in many cases, and can fashion continuing-use orders or injunctions if needed (see sections 116AAD–116AAF).\n- Sets the conditions that must be met for the limitation on remedies: a \"reasonably diligent search\" for the owner, the search must be recent, a record of the search must be kept, the owner must be unidentifiable/unlocatable at the time of use, and a clear and reasonably prominent notice about the orphan status must be given (section 116AAE). The defendant (the user) bears the burden of proving these conditions (116AAD(5)). The Minister can make legislative instruments to specify things like notice requirements and factors to be considered when assessing the search or record (116AAE(12)–(14)).\n- Confirms how continuing use is handled after an action for infringement: parties can agree terms or the court can set reasonable terms or grant injunctions; compliance with those terms means the continued use will not be an infringement (section 116AAF).\n- Includes a standard provision that the Commonwealth must pay compensation if the operation of the new regime would otherwise amount to an acquisition of property contrary to the Constitution (section 116AAG).\n\n- Clarifies the existing educational exception (section 28) to explicitly cover online and hybrid instruction and people who are \"assisting or otherwise supporting\" (for example, teacher aides, parents helping a student, IT support) rather than only people physically \"present\" (Schedule 2, amendments to section 28, including new subsections 28(8)–(10)). The protection applies only to people participating contemporaneously (live or substantially live), not to delayed/recorded streams (28(10)).\n\n- Makes a set of technical and administrative amendments (Schedule 3):\n  - Changes who appoints the acting President of the Copyright Tribunal from the Governor‑General to the Minister (section 142 as amended).\n  - Changes appointment/termination and resignation processes for the Tribunal Registrar so they are handled by the Chief Executive Officer and Principal Registrar of the Federal Court rather than the Minister (subsections 170(2), (4) and (5) as amended).\n  - Replaces multiple \"notice in the Gazette\" requirements with publication by \"notifiable instrument\" (tightens how certain administrative actions are published).\n  - Updates the list of recognised state archival bodies.\n  - Clarifies that the special rules about duration of Crown copyright apply only to material made or first published by, or under the control of, the Crown — not to material the Crown later acquires from a third party (amendments to sections relevant to duration and Part VII).\n\nWhy the Act says it was done (official rationale)\n\n- The orphan-works regime is intended to give cultural institutions, educators, researchers and other users more legal certainty so that materials where the rights‑holder cannot be found can be digitised, published or used without the normal risk of large monetary claims, subject to diligence, recordkeeping and notice (see Division 2AAA explanatory notes).\n- The education amendments are intended to make clear that the existing classroom performance/communication exception applies to online and hybrid teaching, and to people assisting learning, bringing the statute in line with contemporary teaching methods.\n- The administrative amendments are pitched as modernising and improving continuity and alignment with court practice.\n\nHow it changes incentives, who pays, who decides, and practical trade‑offs\n\n- Who bears direct costs and compliance burdens: users (libraries, museums, schools, researchers, other institutions and individuals) who rely on the orphan-works route must carry out and document searches, keep records, and display clear notices. Those activities impose time and administrative costs (see 116AAE(2)–(4) and (6)–(7)).\n\n- Who benefits and how: organisations that hold or want to make available older or hard‑to‑license material (archives, museums, libraries, family historians, educators, small publishers) gain reduced financial risk when they can show they met the statutory conditions. Benefits are concentrated among active users of orphan material.\n\n- Impact on rights‑holders: copyright owners who later emerge keep remedies other than monetary awards in many cases (courts may still order injunctions or set terms for continuing use), but may have reduced access to monetary damages where users satisfied the Division’s tests. That shifts some downside risk from users to rightsholders, unless a reasonable payment or court-ordered continuing-use terms are obtained (116AAD and 116AAF).\n\n- Allocation of decision‑making: the Act leaves key judgments to courts (whether a search was \"reasonably diligent\", whether payment is \"reasonable\", whether terms for continuing use are appropriate), but gives the Minister power to make legislative instruments to specify notice, search and recordkeeping matters (116AAE(12)–(14)). This mixes judicial fact-finding with administrative rule‑making.\n\n- Effects on private markets and behaviour: the regime lowers transaction costs of using orphan works, which may lead to more digitisation and public availability of old or unlicensed material. That could reduce demand for licensing in marginal cases, and create substitution effects where users choose orphan items over paid/licensed alternatives. Educational providers gain clarity for online delivery, reducing legal uncertainty when showing or communicating works in live online classes (amendments to s28).\n\n- Contract freedom and subsequent agreements: nothing in the Division prevents rights‑holders and users agreeing terms for continued use — indeed the Act creates mechanisms to record such agreements or have courts set them (116AAF). Rights‑holders therefore retain the ability to bargain for payment or terms once identified.\n\n- Administrative discretion and regulatory risk: the Minister's power to make legislative instruments about what counts as a reasonably diligent search, notice prominence, and recordkeeping standards creates an avenue for detailed administrative guidance — this reduces legal uncertainty once instruments exist, but concentrates agenda‑setting power in the Minister and may be subject to lobbying when industry guidelines are incorporated or referenced.\n\n- Constitutional and fiscal backstop: the Act includes repeated \"just terms\" compensation clauses (for the orphan works Division, the education amendments and Crown‑copyright changes) so that if any change operates as an uncompensated acquisition of property, the Commonwealth must pay reasonable compensation. That reduces constitutional risk but leaves potential fiscal exposure for the Commonwealth.\n\nImplementation and litigation risk\n\n- The Act introduces open standards: terms like \"reasonably diligent search\", \"reasonable period\", and \"reasonable payment\" are not rigidly defined and will be developed through case law and any ministerial instruments. Expect early litigation to define these standards and the line between private/domestic use and other uses (see 116AAE(2)–(4), 116AAD(4)).\n- Recordkeeping and notice practice will matter in defending uses; institutions will likely adopt formal search protocols and preserve search logs.\n- Ministerial instruments and industry guidelines will shape what courts later regard as sufficient, creating short‑to‑medium term regulatory uncertainty until instruments/guidelines are published.\n\nNet practical effect (plain terms)\n\n- For cultural institutions, educators and researchers: clearer legal pathway to use orphan works with reduced risk of large monetary awards, but you must do and document a proper search and give prominent notice.\n- For authors and rights‑holders: you retain the right to stop or negotiate terms for continuing use if you come forward, but your ability to secure damages in many orphan‑work scenarios will be limited unless statutory conditions are not met.\n- For educational providers and teachers: the Act clarifies that live online and hybrid teaching falls within the long‑standing \"in course of instruction\" exception, and that people assisting learners are covered, provided participation is contemporaneous.\n\nKey sections to look at in the Act for more detail: Division 2AAA (sections 116AAB–116AAG) for orphan works; amended section 28 and new subsections (8)–(10) for remote learning; section 142 and subsections 170(2), (4), (5) for appointment changes; Part 4 of Schedule 3 for Crown copyright duration clarifications."}},"importantCases":[],"_links":{"self":"/api/acts/copyright-amendment-bill-2026","history":"/api/acts/copyright-amendment-bill-2026/history","analysis":"/api/acts/copyright-amendment-bill-2026/analysis","conflicts":"/api/acts/copyright-amendment-bill-2026/conflicts","importantCases":"/api/acts/copyright-amendment-bill-2026/important-cases","documents":"/api/acts/copyright-amendment-bill-2026/documents"}}