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).
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)).
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).
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).
The Copyright Amendment Act 2026 amends the Copyright Act 1968 through three schedules that took effect on 2 April 2026 following royal assent on 1 April 2026. Schedule 1 inserts Division 2AAA into Part V of the Copyright Act 1968, comprising new sections 116AAB to 116AAG, to establish a scheme limiting remedies for infringing use of orphan works where a reasonably diligent search for the copyright owner or owners was conducted, a record of that search was kept, notice was given in a clear and reasonably prominent manner, and the owner or owners could not be identified and located at the time of use. Proposed section 116AAD prevents courts from awarding damages, an account of profits, additional damages or other monetary relief in such cases, though courts may order reasonable payment to the owner or owners except where the use was solely private and domestic and the defendant promptly ceased use or reached an agreement for continuing use. Proposed section 116AAF allows parties to agree terms for continuing use of the material or apply to a court for an order fixing reasonable terms or granting an injunction, with copyright not infringed if those terms are complied with. Schedule 1 also updates subsection 113Q(2) and inserts subsections 113Q(2A) to (2D) to ensure that copying or communicating by educational institutions is not treated as licensed where a notice under subsection 116AAE(6) applies. Schedule 2 amends section 28 of the Copyright Act 1968 by replacing references to performance or communication in the presence of an audience with references to performance or communication to or by an audience, extending the exception to educational instruction conducted in person, online or in hybrid format, clarifying that persons assisting teachers or students are taken to be taking part in the instruction, and limiting protection for remote participants to those joining at the same time or substantially the same time as the instruction is given. Items 1 to 16 of Schedule 2 make consequential wording changes to paragraphs 28(1)(a), 28(6)(a), 28(7)(a) and related provisions to remove any implication that physical presence is required. Schedule 3 reallocates appointment powers for the Copyright Tribunal of Australia so that the Minister rather than the Governor-General appoints an acting President under section 142, and the Chief Executive Officer and Principal Registrar of the Federal Court of Australia rather than the Minister appoints, terminates and receives resignations from the Registrar under section 170. Part 2 of Schedule 3 updates the definition of archives in subsection 10(1) to reflect current New South Wales and other state bodies including the State Records Authority NSW, Museums of History NSW, Public Record Office Victoria, Queensland State Archives, State Records Office Western Australia, State Records South Australia, Archives Office of Tasmania and Northern Territory Archives Service. Part 3 of Schedule 3 replaces requirements for publication in the Gazette with requirements for notifiable instruments in multiple provisions including sections 135ZZT, 135ZZU, 135ZZX, 135ZZZO, 135ZZZP, 135ZZZT, 153F, 153G, 153J, 153P, 153Q, 153U and 153V. Part 4 of Schedule 3 inserts provisions in sections 33, 93 and 96 to confirm that those duration rules have effect subject to Part VII, and amends section 180 to limit Crown copyright duration rules to material that the Commonwealth or a state owns or owned by virtue of Part VII or would own but for an agreement under section 179, ensuring that later acquisition of independently created material does not shorten the copyright term. Transitional provisions preserve the effect of prior acting appointments and instruments of appointment. Application provisions confirm that the orphan works scheme applies to use occurring or beginning on or after commencement, that the remote learning clarifications apply immediately, and that the Crown copyright amendments apply to material made before, on or after commencement without retrospective operation on existing terms.
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Amends the Copyright Act 1968 to: facilitate the use of copyright materials for which the copyright owner cannot be identified or located (commonly known as ‘orphan works’) by limiting the remedies available for infringing use if the user conducts a reasonably diligent search for the copyright owner or owners and meets certain other requirements; clarify the scope of section 28 which relates to the performance and communication of copyright material in the course of educational instruction; and make minor technical amendments.
Parliamentary progress
Progress
House of Representatives
Introduced and read a first time
05 Nov 2025
Second reading moved
05 Nov 2025
Second reading debate
03 Feb 2026
Referred to Federation Chamber
03 Feb 2026
Second reading debate
03 Feb 2026
Second reading agreed to
03 Feb 2026
Consideration in detail debate
Amendment details: 3 Government agreed to
03 Feb 2026
Reported from Federation Chamber
04 Feb 2026
Third reading agreed to
04 Feb 2026
Senate
Introduced and read a first time
05 Feb 2026
Second reading moved
05 Feb 2026
Second reading debate
31 Mar 2026
Second reading agreed to
31 Mar 2026
Third reading agreed to
31 Mar 2026
Finally passed both Houses
31 Mar 2026
Assent
Act no: 29
Year: 2026
01 Apr 2026
Notes
Documents and transcripts
Text of bill
First reading
Third reading
As passed by both Houses
Explanatory memoranda
Explanatory memorandum
Revised explanatory memorandum
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)).
Makes a set of technical and administrative amendments (Schedule 3):
Changes who appoints the acting President of the Copyright Tribunal from the Governor‑General to the Minister (section 142 as amended).
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).
Replaces multiple "notice in the Gazette" requirements with publication by "notifiable instrument" (tightens how certain administrative actions are published).
Updates the list of recognised state archival bodies.
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).
Why the Act says it was done (official rationale)
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).
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.
The administrative amendments are pitched as modernising and improving continuity and alignment with court practice.
How it changes incentives, who pays, who decides, and practical trade‑offs
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)).
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.
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).
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.
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).
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.
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.
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.
Implementation and litigation risk
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)).
Recordkeeping and notice practice will matter in defending uses; institutions will likely adopt formal search protocols and preserve search logs.
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.
Net practical effect (plain terms)
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.
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.
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.
Key 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.
Main concepts
The central concept introduced is the orphan works scheme under new Division 2AAA of Part V, which treats copyright material as orphaned when the owner or owners cannot be identified and located after a reasonably diligent search conducted within a reasonable period before use, with a record of the search maintained for a reasonable period and clear prominent notice given that the owners could not be found. Key factors for assessing diligence include the nature of the material, the purpose and character of the use, whether owners are likely overseas, the impact of the use, the method of search, relevant industry guidelines and any ministerial determinations by legislative instrument. The scheme limits remedies to encourage cultural, educational and research uses while preserving owners' ability to seek reasonable payment or negotiate continuing use once identified. A second core concept is the modernisation of the section 28 educational instruction exception so that performances and communications during teaching are not treated as public where instruction occurs online or in hybrid settings, provided remote participants join live or substantially live, and assistants or supporters of teachers and students are covered. This maintains the existing limit to live delivery rather than recorded or delayed streaming. A third concept is the reallocation of administrative powers for the Copyright Tribunal to improve efficiency, shifting acting President appointments to the Minister and Registrar functions to the Chief Executive Officer and Principal Registrar of the Federal Court. A fourth concept is the clarification of Crown copyright duration so that the shorter fifty-year term under section 180 applies only to material created or first published under Crown direction or control, and not to material later acquired from third parties, thereby avoiding unintended shortening of terms or extinguishment of moral rights. Additional concepts include the shift from Gazette notices to notifiable instruments for transparency and accessibility in declarations and appointments relating to collecting societies and Tribunal matters, and updated statutory references to current state archives bodies to ensure the archives exception continues to operate correctly.
Who it affects
Educational institutions including schools, universities and not-for-profit providers benefit directly from the clarified section 28 exception, allowing teachers, teacher aides, trainee teachers, IT support staff, mental health workers, parents assisting students and community members delivering instruction to perform or communicate copyright material in online, hybrid or in-person classes without infringement, provided the timing conditions for remote participation are met. Cultural institutions such as galleries, libraries, archives and museums gain greater certainty when using orphan works for exhibitions, digitisation, research support and public access programmes. Researchers, family historians, students and the wider public obtain improved access to historical, cultural and educational materials previously locked away due to untraceable owners. Copyright owners retain the right to come forward, receive reasonable payment where ordered, negotiate continuing use agreements or obtain court orders, and are protected by the requirement for diligent searches and prominent notices. The Copyright Tribunal of Australia experiences streamlined appointment processes for its acting President and Registrar. Commonwealth and state governments benefit from clearer rules on Crown copyright duration for materials they create or control, and from updated archives definitions that align with current agency structures in New South Wales, Victoria, Queensland, Western Australia, South Australia, Tasmania and the Northern Territory. Collecting societies and bodies declared under provisions such as sections 135ZZT and 153F face procedural changes from Gazette publication to notifiable instruments. Commercial users of copyright material receive no special protection and must still conduct diligent searches or obtain licences, while private domestic users of orphan works receive the strongest limitation on remedies if they cease use promptly upon owner identification. Ministers gain new powers to make legislative instruments setting search standards, notice requirements and record-keeping expectations for the orphan works scheme.
What people will want to know
Users of copyright material held by cultural institutions will want to know that they can now rely on the orphan works scheme for uses such as digitisation, publication or exhibition provided they perform a reasonably diligent search, keep records, give prominent notice that owners could not be found, and confirm at the time of use that owners remain unidentifiable and unlocatable. The search must be recent enough to reflect current information and technology, with higher standards expected for commercial uses, photographs, culturally sensitive material or foreign works. Educational institutions and teachers will want to know that section 28 now expressly covers online and hybrid classes, that assistants and supporters of students and teachers are included, and that remote students must participate at the same time or substantially the same time as live instruction, excluding delayed recordings. Copyright owners will want to know that they can still enforce rights by proving the search was inadequate, that courts may order reasonable payment based on factors such as the type of work and purpose of use, and that continuing use can be agreed or court-ordered once they are identified. Private individuals using material solely for domestic purposes will want to know they face no monetary orders if they stop use promptly when an owner appears. Institutions holding Crown copyright material will want to know that duration remains governed by the fifty-year rule under section 180 only for material created under Crown control, and that later acquisition of third-party material does not shorten existing terms. Anyone dealing with collecting society declarations or Tribunal appointments will want to know that notices now appear as notifiable instruments rather than in the Gazette, improving online accessibility. The Act does not create new offences or alter existing infringement liability outside the limited-remedy framework for qualifying orphan works uses.
Status and what happens next
The Copyright Amendment Act 2026 received royal assent on 1 April 2026 as Act number 29 of 2026 and commenced operation on 2 April 2026. All amendments to the Copyright Act 1968 are therefore in force. The orphan works scheme applies to any use that occurs or begins on or after that date. The remote learning clarifications to section 28 apply immediately to educational instruction delivered in any format. Crown copyright duration rules apply to material whenever made, without altering rights that had already expired. The Act contains no further staged commencement or review provisions. Ministerial powers to issue legislative instruments on search diligence factors, notice prominence and record retention periods are available for exercise at any time. Transitional provisions ensure that any acting President appointment made by the Governor-General before commencement continues as if made by the Minister, and any Registrar appointment made by the Minister continues as if made by the Chief Executive Officer and Principal Registrar of the Federal Court. No additional parliamentary steps or committee inquiries are required. Institutions and users may now rely on the new provisions when planning projects involving orphan works or remote teaching, subject to any future industry guidelines that may be developed to support the diligence requirements.
Powers, duties and rights created
The Act creates a right for defendants in copyright infringement actions to limit remedies to reasonable payment or no monetary relief where the conditions in section 116AAE are met, shifting the burden of proof to the defendant to establish diligent search, timing, record-keeping and inability to identify or locate owners. Copyright owners gain a corresponding right to apply for court orders fixing reasonable terms for continuing use or granting injunctions under section 116AAF once identified, with courts required to consider the nature of the material, impact on owners, any break in use and costs incurred by the defendant. The Minister receives new powers under subsections 116AAE(12) to (14) to determine by legislative instrument the requirements for prominent notice, matters relevant to diligent search and matters relevant to reasonable record retention. The Commonwealth gains a duty under sections 116AAG, item 18 of Schedule 2 and item 38 of Schedule 3 to pay just terms compensation if any provision results in acquisition of property otherwise than on just terms, with disputes resolved in the Federal Court or state or territory Supreme Courts. The Chief Executive Officer and Principal Registrar of the Federal Court gains the power and duty to appoint, terminate and accept resignations from the Registrar of the Copyright Tribunal. The Minister gains the power to appoint acting Presidents of the Tribunal. Educational institutions and participants gain expanded rights to perform and communicate material under the amended section 28 without constituting public performance or communication. Archives bodies listed in the updated definition gain continued protection for their preservation and access activities. No new criminal offences or civil penalties are created.
Money, penalties and enforcement
The Act introduces no criminal penalties, civil penalties or infringement notices. Enforcement of copyright remains through existing civil actions under the Copyright Act 1968, subject to the new limitation on remedies in qualifying orphan works cases. Where the orphan works conditions are satisfied, courts must not award damages, accounts of profits, additional damages or other monetary relief, but may order the defendant to make reasonable payment to the copyright owner or owners, with the amount determined by reference to the type of work, purpose of creation, extent of use and purpose of the infringing use. No such payment order may be made for purely private and domestic use where the defendant promptly ceased the use or entered a continuing use agreement. Courts retain power to grant injunctions or fix reasonable continuing use terms under section 116AAF, taking into account impact on owners and costs to the defendant. The just terms compensation provisions require the Commonwealth to pay reasonable compensation determined by agreement or by court order in the Federal Court or state or territory Supreme Courts if constitutional acquisition issues arise. No fees, levies or new licensing charges are imposed by the Act itself. Existing licence schemes and collecting society arrangements continue unaffected except that educational copying or communicating covered by an orphan works notice is excluded from licensed copying definitions under the amended section 113Q.
Pressure points and controversies
The orphan works scheme creates a policy trade-off between facilitating access to culturally and educationally valuable material whose owners cannot be traced and maintaining incentives for copyright creation by ensuring owners who later appear can still obtain reasonable payment or court-supervised continuing use arrangements. The requirement for a reasonably diligent search, with higher standards expected for commercial, photographic or culturally sensitive works, places practical compliance burdens on users, particularly smaller institutions or individuals without dedicated rights clearance resources. The absence of a statutory definition of diligent search leaves scope for judicial interpretation and potential disputes over whether industry guidelines or ministerial instruments sufficiently clarify expectations. The remote learning amendments resolve uncertainty for hybrid education but maintain a strict live or substantially live requirement, creating a distinction between synchronous online classes and asynchronous recorded content that may require institutions to adjust delivery methods. The reallocation of Tribunal appointment powers reduces procedural complexity for temporary roles but concentrates certain administrative functions with the Federal Court Chief Executive Officer. The Crown copyright clarification prevents unintended term shortening upon acquisition but requires careful record-keeping to distinguish material created under Crown control from material later transferred. The change from Gazette notices to notifiable instruments improves accessibility yet assumes users will monitor the Federal Register of Legislation. Stakeholder commentary recorded in the official materials welcomed the measures for orphan works and remote learning while noting calls for further exceptions addressing artificial intelligence uses in education, an issue not addressed in the Act.
What changes if it passes
Now that the Copyright Amendment Act 2026 has passed and commenced, users of orphan works may proceed with qualifying uses while limiting their exposure to monetary remedies, provided they satisfy the search, record and notice conditions set out in section 116AAE. Educational institutions may deliver copyright material in online and hybrid classes with greater statutory certainty that such performances and communications are not public, extending protection to assistants and remote participants joining live. Copyright Tribunal operations benefit from streamlined acting appointments and Registrar management aligned with Federal Court processes. Crown copyright duration calculations are now expressly limited to material originating under Part VII, protecting longer terms for acquired works and preserving associated moral rights. Declarations and appointments previously notified in the Gazette must now be made by notifiable instrument, increasing the visibility of those instruments on official registers. Archives exceptions continue to apply to the updated list of state record and history bodies. Overall, the Act reduces legal risk for specified non-commercial and educational uses of previously inaccessible material while preserving core copyright enforcement mechanisms and owners' rights to come forward and negotiate or litigate for reasonable compensation. No existing licences are invalidated and no new compulsory licensing regimes are introduced.
Social post angles
New orphan works rules let cultural institutions digitise historical photos and documents with clearer legal protection after diligent searches. The Copyright Amendment Act 2026 balances access and owner rights through notice and record requirements. Schools and universities gain explicit permission to stream copyright material in live online and hybrid lessons under updated section 28. Remote students and parent helpers are now clearly covered when supporting real-time educational instruction. Copyright Tribunal appointments move to the Minister and Federal Court CEO for faster temporary staffing decisions. Crown copyright duration stays shorter only for material created under government control, protecting terms on later acquisitions. Gazette notices for collecting society declarations are replaced by notifiable instruments for easier public access. The Act responds to COVID-era remote learning needs without extending exceptions to pre-recorded or delayed content.
Supplementary explanatory memorandum
Transcript of speeches
All second reading speeches
Minister's second reading speech
Proposed amendments
House of representatives
Detail - Government [sheet CH116]
Senate
2R - Australian Greens [sheet 3732]
SHOEBRIDGE, Sen David
2R - Independent [sheet 3762]
POCOCK, Sen David
Schedules of amendments
Schedule of the amendments agreed to by the Federation Chamber
Bills digest
Bills Digest
Notes
Referred to Committee (06/11/2025): Senate Legal and Constitutional Affairs Legislation Committee; Committee report (19/12/2025)
An electronic version of this Act is available on the Federal Register of Legislation (www.legislation.gov.au)
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).
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An Act to amend the Copyright Act 1968, and for related purposes
Contents
1 Short title 1
2 Commencement 1
3 Schedules 2
Schedule 1,Orphan works 3
Copyright Act 1968 3
Schedule 2,Remote learning 10
Copyright Act 1968 10
Schedule 3,Other measures 13
Part 1,Appointments 13
Copyright Act 1968 13
Part 2,Archives 15
Copyright Act 1968 15
Part 3,Notifiable instruments 16
Copyright Act 1968 16
Part 4,Duration of Crown copyright 20
Copyright Act 1968 20
Copyright Amendment Act 2026
No. 29, 2026
An Act to amend the Copyright Act 1968, and for related purposes
[Assented to 1 April 2026]
The Parliament of Australia enacts:
1 Short title
This Act is the Copyright Amendment Act 2026.
2 Commencement
(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.
Commencement information
Column 1
Column 2
Column 3
Provisions
Commencement
Date/Details
The whole of this Act
The day after this Act receives the Royal Assent.
2 April 2026
Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.
(2) Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.
3 Schedules
Legislation that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.
Schedule 1,Orphan works
Copyright Act 1968
1A Subsection 10(1) (definition of licensed copying or communicating)
Omit “subsection 113Q(2)”, substitute “subsections 113Q(2) and (2A)”.
1B After subsection 113Q(2)
Insert:
Copying and communicating works when owner cannot be found
(2A) However, copying or communicating mentioned in subsection 113P(1) or (2) is not licensed copying or communicating if it is covered by a notice under subsection 116AAE(6) given in relation to, or in connection with, the educational institution.
Note: Under Division 2AAA of Part V, remedies available for infringement of copyright may be limited where the owner of works could not be found before use. Section 116AAE sets out conditions that must be satisfied for this to occur.
(2B) If the copying or communicating is covered by a notice under subsection 116AAE(6), a copy of that notice must be given:
(a) in the circumstances (if any) specified in a determination under subsection (2C); and
(b) to a person or body (if any) specified in a determination under subsection (2C); and
(c) in accordance with the requirements (if any) specified in a determination under subsection (2C).
(2C) The Minister may, by legislative instrument, specify:
(a) circumstances for the purposes of paragraph (2B)(a); and
(b) one or more persons or bodies for the purposes of paragraph (2B)(b); and
(c) requirements for the purposes of paragraph (2B)(c).
(2D) To avoid doubt, a failure to comply with subsection (2B) does not affect subsection (2A).
When remuneration notice applies
1 After Division 2 of Part V
Insert:
Division 2AAA,Limitation on remedies when owner cannot be found
116AAB Purpose of this Division
(1) The purpose of this Division is to limit the remedies that may be available for infringement of copyright where the copyright owner or owners could not be identified and located at the time of the infringing use.
(2) Other than as provided in sections 116AAD and 116AAF, this Division does not limit the operation of any other provision of this Act.
116AAC Definitions
In this Division:
continuing use has the meaning given by subsection 116AAF(8).
infringing use means use that constitutes an infringement of copyright in copyright material.
use includes the doing of an act.
116AAD Limitation on remedies
When this section applies
(1) This section applies in relation to an action for infringement of copyright if the conditions in section 116AAE are satisfied.
Limitation on remedies
(2) Subject to subsection (3), a court must not grant relief against the defendant in respect of the infringing use that consists of:
(a) damages or an account of profits; or
(b) additional damages; or
(c) other monetary relief.
Court may order reasonable payment
(3) The court may order the defendant to make reasonable payment to the copyright owner or owners in respect of the infringing use.
(4) However, subsection (3) does not apply if:
(a) the use was solely for private and domestic use; and
(b) either:
(i) the defendant promptly ceased use of the copyright material; or
(ii) the defendant and copyright owner or owners have entered into an agreement for the continuing use of the copyright material.
Burden of proof
(5) The burden of proving that the conditions in section 116AAE are satisfied is on the defendant.
116AAE Conditions
(1) This section sets out the conditions for the purposes of subsection 116AAD(1).
Condition,Reasonably diligent search
(2) A reasonably diligent search for the owner or owners of copyright in the copyright material was conducted.
Note: See further subsection (8).
Condition,Timing of the search
(3) The search was conducted within a reasonable period before the infringing use.
Note: See further subsection (8).
Condition,Record of search
(4) A record of the search was maintained for a reasonable period.
Note: See further subsection (10).
Condition,Owner or owners not identifiable and locatable
(5) At the time of the infringing use, the defendant could not identify and locate the owner or owners of the copyright.
Condition,Notice
(6) Notice was given in relation to the infringing use, stating that:
(a) the owner or owners of the copyright could not be identified and located; and
(b) the notice is being given for the purposes of this Division.
Note: A notice under this subsection also has effect for the purposes of subsection 113Q(2A) (which is about when copying or communicating by educational institutions is not licensed).
(7) The notice was given in a clear and reasonably prominent manner. For the purposes of this subsection, a notice is taken to be reasonably prominent if it complies with the requirements (if any) determined under subsection (12).
Matters to be taken into account regarding search
(8) For the purposes of determining whether a condition mentioned in subsection (2) or (3) is satisfied, the following matters may be taken into account:
(a) the nature of the copyright material;
(b) the nature, purpose and character of the infringing use;
(c) whether the owner or owners of the copyright are likely to be located in a foreign country;
(d) the actual or likely impact of the infringing use on the copyright owner or owners;
(e) the way the search was conducted;
(f) any relevant industry guidelines;
(g) any matters determined by the Minister under subsection (13).
(9) The matters mentioned in subsection (8) do not limit the matters that may be taken into account.
Matters to be taken into account regarding record of search
(10) For the purposes of determining whether the condition mentioned in subsection (4) is satisfied, the following matters may be taken into account:
(a) the duration of the infringing use;
(b) when the infringing use ceased;
(c) any matters determined by the Minister under subsection (14).
(11) The matters mentioned in subsection (10) do not limit the matters that may be taken into account.
Minister may determine notice requirements
(12) The Minister may, by legislative instrument, determine requirements for the purposes of subsection (7).
Minister may determine matters regarding search
(13) The Minister may, by legislative instrument, determine matters that may be taken into account for the purposes of paragraph (8)(g).
Minister may determine matters regarding record of search
(14) The Minister may, by legislative instrument, determine matters that may be taken into account for the purposes of paragraph (10)(c).
116AAF Agreements and court orders for continuing use
When this section applies
(1) This section applies if section 116AAD applies, or has previously applied, in an action for infringement of copyright in copyright material.
Agreed terms
(2) The defendant to the action and the owner or owners of the copyright may agree to terms for the continuing use of the copyright material by the defendant.
Court orders
(3) If agreement cannot be reached, the defendant or the owner or owners of the copyright may apply to the court for an order under subsection (4).
(4) The court may make an order:
(a) fixing reasonable terms for the continuing use of the copyright material by the defendant; or
(b) granting an injunction in such terms as the court considers appropriate.
(5) For the purposes of paragraph (4)(a), the court must take into account the following matters in determining what constitutes reasonable terms for the continuing use:
(a) the nature of the copyright material;
(b) the nature, purpose and character of the continuing use by the defendant;
(c) the actual or likely impact of the continuing use on the copyright owner or owners;
(d) whether there was a break between the infringing use that was the subject of the action and the continuing use;
(e) any costs incurred by the defendant in connection with the continuing use.
(6) The matters mentioned in subsection (5) do not limit the matters that may be taken into account.
Copyright not infringed
(7) Copyright in the copyright material is not infringed where:
(a) terms for the continuing use of the copyright material are agreed or fixed under subsection (2) or (4); and
(b) those terms are complied with.
Definitions
(8) In this section, continuing use of copyright material is use by the defendant that continues beyond the infringing use that was the subject of an action for infringement of copyright mentioned in subsection (1).
116AAG Compensation for acquisition of property
(1) If:
(a) apart from this section, the operation of this Division would result in an acquisition of property (within the meaning of paragraph 51(xxxi) of the Constitution) from a person otherwise than on just terms (within the meaning of that paragraph); and
(b) the acquisition would be invalid because of paragraph 51(xxxi) of the Constitution;
the Commonwealth is liable to pay a reasonable amount of compensation to the person.
(2) If the Commonwealth and the person do not agree on the amount of the compensation, the person may institute proceedings in the Federal Court of Australia or the Supreme Court of a State or Territory for the recovery from the Commonwealth of such reasonable amount of compensation as the court determines.
2 Application provision
Division 2AAA of Part V of the Copyright Act 1968, as inserted by this Schedule, applies in relation to use that occurs, or begins to occur, on or after the commencement of this item.
Schedule 2,Remote learning
Copyright Act 1968
1 Paragraph 28(1)(a)
Omit “in the presence of”, substitute “to”.
2 Paragraph 28(1)(b)
After “teacher”, insert “or other person”.
3 Subsection 28(1)
Omit “otherwise” (second occurring).
4 Subsection 28(1)
After “the place where”, insert “or for which”.
5 Subsection 28(2)
Omit “at”, substitute “for”.
6 Subsection 28(3)
After “place where”, insert “or for which”.
7 Subsection 28(3)
After “instruction at”, insert “or from”.
8 At the end of subsection 28(3)
Add:
Note: A parent or guardian of a student receiving instruction is taken to be taking part in the instruction in some circumstances: see subsection (8).
9 Paragraph 28(6)(a)
Omit “in the presence of”, substitute “by”.
10 Subparagraph 28(6)(a)(i)
After “teacher”, insert “or other person”.
11 Paragraph 28(6)(b)
Omit “otherwise”.
12 Paragraph 28(6)(b)
After “place where”, insert “or for which”.
13 Paragraph 28(7)(a)
Omit “in the presence of”, substitute “by”.
14 Subparagraph 28(7)(a)(i)
After “teacher”, insert “or other person”.
15 Paragraph 28(7)(b)
Omit “otherwise”.
16 Paragraph 28(7)(b)
After “place where”, insert “or for which”.
17 At the end of section 28
Add:
(8) Without limiting this section, a person is taken to be taking part in educational instruction for the purposes of this section if the person is assisting or otherwise supporting:
(a) a teacher or other person giving the instruction; or
(b) a student receiving the instruction.
(9) This section applies to educational instruction conducted:
(a) in person; or
(b) using technology that allows a person to take part in all or part of the educational instruction without being physically present; or
(c) using a combination of the methods mentioned in paragraphs (a) and (b).
(10) Despite subsection (9), this section applies to a person taking part in educational instruction using technology of the kind referred to in paragraph (9)(b) only if the person so takes part at the same time, or at substantially the same time, as the educational instruction is given.
18 Compensation for acquisition of property
(1) If:
(a) apart from this item, the operation of this Schedule would result in an acquisition of property (within the meaning of paragraph 51(xxxi) of the Constitution) from a person otherwise than on just terms (within the meaning of that paragraph); and
(b) the acquisition would be invalid because of paragraph 51(xxxi) of the Constitution;
the Commonwealth is liable to pay a reasonable amount of compensation to the person.
(2) If the Commonwealth and the person do not agree on the amount of the compensation, the person may institute proceedings in the Federal Court of Australia or the Supreme Court of a State or Territory for the recovery from the Commonwealth of such reasonable amount of compensation as the court determines.
Schedule 3,Other measures
Part 1,Appointments
Copyright Act 1968
1 Section 142
Omit “Governor‑General”, substitute “Minister”.
2 At the end of section 142
Add:
Note: For rules that apply to acting appointments, see sections 33AB and 33A of the Acts Interpretation Act 1901.
3 Subsections 170(2) and (4)
Omit “the Minister”, substitute “the Chief Executive Officer and Principal Registrar of the Federal Court of Australia”.
4 Subsection 170(5)
Omit “The Minister”, substitute “The Chief Executive Officer and Principal Registrar of the Federal Court of Australia”.
5 Transitional provision,appointment of acting President of the Copyright Tribunal
(1) This item applies to an appointment that was:
(a) made by the Governor‑General under section 142 of the Copyright Act 1968; and
(b) in force immediately before the commencement of this item.
(2) The Copyright Act 1968 as amended by this Part has effect, after the commencement of this item, as if the appointment had been made by the Minister under that section (as amended by this Part).
6 Transitional provision,instrument of appointment of the Registrar of the Copyright Tribunal
(1) This item applies to an instrument of appointment of the Registrar of the Copyright Tribunal that was:
(a) made by the Minister under subsection 170(2) of the Copyright Act 1968; and
(b) in force immediately before the commencement of this item.
(2) The instrument has effect after the commencement of this item as if it had been made under that subsection (as amended by this Part) by the Chief Executive Officer and Principal Registrar of the Federal Court of Australia.
Part 2,Archives
Copyright Act 1968
7 Subsection 10(1) (subparagraphs (a)(ii) to (iv) of the definition of archives)
Repeal the subparagraphs, substitute:
(ii) the State Records Authority NSW established by the State Records Act 1998 (NSW); or
(iii) the Museums of History NSW established by the Museums of History NSW Act 2022 (NSW); or
(iv) the Public Record Office established by the Public Records Act 1973 (Vic.); or
(v) the Queensland State Archives established by the Public Records Act 2023 (Qld); or
(vi) the State Records Office established by the State Records Act 2000 (WA); or
(vii) the office of State Records established by the State Records Act 1997 (SA); or
(viii) the Archives Office of Tasmania established by the Archives Act 1983 (Tas.); or
(ix) the Northern Territory Archives Service established under the Information Act 2002 (NT); or
Part 3,Notifiable instruments
Copyright Act 1968
8 Paragraph 135ZZT(1A)(a)
Omit “by notice in the Gazette”, substitute “by notifiable instrument”.
9 Subsection 135ZZT(1B)
Repeal the subsection.
10 Paragraph 135ZZU(2)(a)
Omit “by notice in the Gazette”, substitute “by notifiable instrument”.
11 Section 135ZZX
Omit “by notice in the Gazette”, substitute “by notifiable instrument”.
12 Paragraph 135ZZZO(2)(a)
Omit “by notice published in the Gazette”, substitute “by notifiable instrument”.
13 Subsection 135ZZZO(3)
Repeal the subsection.
14 Paragraph 135ZZZP(2)(a)
Omit “by notice published in the Gazette”, substitute “by notifiable instrument”.
15 Section 135ZZZT
Omit “by notice published in the Gazette”, substitute “by notifiable instrument”.
16 Paragraph 153F(4)(a)
Before “declare the applicant”, insert “by notifiable instrument,”.
17 Subsection 153F(8)
Repeal the subsection.
18 Paragraph 153G(4)(a)
Before “revoke the declaration”, insert “by notifiable instrument,”.
19 Subsection 153G(7)
Repeal the subsection.
20 Subsection 153J(1)
After “the Tribunal must”, insert “, by notifiable instrument,”.
21 Subsection 153J(3)
After “the Tribunal must”, insert “, by notifiable instrument,”.
22 Subsection 153J(5)
Repeal the subsection.
23 Paragraph 153P(4)(a)
Before “declare the applicant”, insert “by notifiable instrument,”.
24 Subsection 153P(5)
Repeal the subsection.
25 Paragraph 153Q(4)(a)
Before “revoke the declaration”, insert “by notifiable instrument,”.
26 Subsection 153Q(5)
Repeal the subsection, substitute:
(5) If the Tribunal revokes the declaration of the collecting society, the revocation must specify the day on which it takes effect.
27 Paragraph 153U(4)(a)
Before “declare the applicant”, insert “by notifiable instrument,”.
28 Subsection 153U(5)
Repeal the subsection.
29 Paragraph 153V(4)(a)
Before “revoke the declaration”, insert “by notifiable instrument,”.
30 Subsection 153V(5)
Repeal the subsection, substitute:
(5) If the Tribunal revokes the declaration of the collecting society, the revocation must specify the day on which it takes effect.
31 Application provision,declarations and appointments
(1) The amendments of section 135ZZT of the Copyright Act 1968 made by this Part apply in relation to a declaration made after the commencement of this item.
(2) The amendment of section 135ZZU of the Copyright Act 1968 made by this Part applies in relation to a revocation that happens after the commencement of this item.
(3) The amendment of section 135ZZX of the Copyright Act 1968 made by this Part applies in relation to an appointment made after the commencement of this item.
(4) The amendments of section 135ZZZO of the Copyright Act 1968 made by this Part apply in relation to a declaration made after the commencement of this item.
(5) The amendment of section 135ZZZP of the Copyright Act 1968 made by this Part applies in relation to a revocation that happens after the commencement of this item.
(6) The amendment of section 135ZZZT of the Copyright Act 1968 made by this Part applies in relation to an appointment made after the commencement of this item.
(7) The amendments of section 153F of the Copyright Act 1968 made by this Part apply in relation to a declaration made after the commencement of this item.
(8) The amendments of section 153G of the Copyright Act 1968 made by this Part apply in relation to a revocation that happens after the commencement of this item.
(9) The amendments of section 153J of the Copyright Act 1968 made by this Part apply in relation to an amendment or revocation that happens after the commencement of this item.
(10) The amendments of section 153P of the Copyright Act 1968 made by this Part apply in relation to a declaration made after the commencement of this item.
(11) The amendments of section 153Q of the Copyright Act 1968 made by this Part apply in relation to a revocation that happens after the commencement of this item.
(12) The amendments of section 153U of the Copyright Act 1968 made by this Part apply in relation to a declaration made after the commencement of this item.
(13) The amendments of section 153V of the Copyright Act 1968 made by this Part apply in relation to a revocation that happens after the commencement of this item.
Part 4,Duration of Crown copyright
Copyright Act 1968
32 Before subsection 33(1)
Insert:
(1A) This section has effect subject to Part VII.
33 Before subsection 93(1)
Insert:
(1A) This section has effect subject to Part VII.
34 Section 96 (after the heading)
Insert:
(1) This section has effect subject to Part VII.
35 Section 96
Before “Copyright”, insert “(2)”.
36 Subparagraphs 180(b)(a) and (b)
Repeal the subparagraphs, substitute:
(i) is, or was, the owner by virtue of this Part; or
(ii) would, but for an agreement to which section 179 applies, be the owner by virtue of this Part;
37 Application provision,Crown copyright
The amendments made by this Part apply in relation to copyright material made before, on or after the commencement of this item.
38 Compensation for acquisition of property
(1) If:
(a) apart from this item, the operation of this Part would result in an acquisition of property (within the meaning of paragraph 51(xxxi) of the Constitution) from a person otherwise than on just terms (within the meaning of that paragraph); and
(b) the acquisition would be invalid because of paragraph 51(xxxi) of the Constitution;
the Commonwealth is liable to pay a reasonable amount of compensation to the person.
(2) If the Commonwealth and the person do not agree on the amount of the compensation, the person may institute proceedings in the Federal Court of Australia or the Supreme Court of a State or Territory for the recovery from the Commonwealth of such reasonable amount of compensation as the court determines.