On 26 October 2025, the Hon Michelle Rowland MP, announced that the Australian Government will not introduce a text and data mining (TDM) exception to copyright infringement in the Australian Copyright Act 1968 (Cth) (Copyright Act), and the Attorney-General's Department will instead engage in further consultations with members of the Copyright and Artificial Intelligence Reference Group (CAIRG) to consider licensing models for copyright material used in AI training in Australia.

The CAIRG is a consultative reference group established and administered by the Attorney-General's Department, on behalf of the Australian Government, as a standing mechanism to facilitate engagement, information sharing and discussion between government and non-government stakeholders, and address copyright challenges arising from AI. Its members include representatives from the tech industry, arts and creative sector organisations, copyright collecting societies, government and regulatory bodies, educational institutions and representative organisations, media organisations, and academics.

Was a TDM exception ever on the cards?

In August 2025, the Australian Productivity Commission released the harnessing data and digital technology interim report (Interim Report). The Interim Report included six draft recommendations, dealing with AI, data access, privacy regulation and digital financial reporting.

In relation to AI, the Productivity Commission referred to concerns that "the Australian copyright regime is not keeping pace with the rise of AI technology – whether because it does not adequately facilitate the use of copyrighted works or because AI developers can too easily sidestep existing licensing and enforcement mechanisms." Faced with this, the report included three policy options: 

• ·no policy change – that is, copyright owners would continue to enforce their rights under the existing copyright framework, including through the court system
• policy measures to better facilitate the licensing of copyrighted materials, such as through collecting societies
• amending the Copyright Act to include a fair dealing exception that would cover text and data mining.

At a 30 September 2025 Senate Committee hearing, Dr Stephen King, Productivity Commissioner for the Harnessing data and digital technology inquiry, noted that the Interim Report focussed on the potential gains to productivity growth from recent developments in AI technology, and a key element of the report was for the Australian government to undertake a gaps analysis of existing laws to make sure they remain fit for purpose in the AI age. Copyright was chosen as a case study to highlight the need for a gaps analysis and reference is made to the introduction of a TDM exception.

This is not the first time a TDM exception had been considered as a law reform option in Australia. In 2013, the Australian Law Reform Commission's (ALRC) report on Copyright and the Digital Economy, recommended the introduction of fair use exception amendments to the Copyright Act to enable TDM. The ALRC defined TDM as "automated analytical techniques that work by 'copying existing electronic information, for instance articles in scientific journals and other works, and analysing the data they contain for patterns, trends and other useful information."

The ALRC noted that TDM is increasingly important in sectors including research, medicine, business, marketing, academic publishing, genomics, and the digital economy and referred to the growing recognition that TDM "should not be infringement because it is a 'non-expressive' use." Similarly, the Productivity Commission's 2016 draft report on Intellectual Property Arrangements referenced TDM under its broader recommendation for a fair use exception, and noted that a broad, principles-based fair use exception would allow uses such as "innovative research techniques, including text and data mining." The Productivity Commission's rationale at the time, was that enabling TDM would support research, innovation and follow-on creativity, while still balancing rights holders' interests.

What is the Australian Government's position on the introduction of a TDM exception now?

In a media release on 26 October 2025, and on the ABC's AM radio program the next morning, the Attorney-General, the Hon Michelle Rowland MP, announced that the Australian Government does not support the introduction of a TDM exception and "there are no plans to weaken copyright protections when it comes to AI". The Attorney-General explicitly ruled out amending the Copyright Act to include a TDM exception and convened the CAIRG to discuss three priority areas:

"1. Encourage fair, legal avenues for using copyright material in AI

Examining whether a new paid collective licensing framework under the Copyright Act should be established for AI, or whether to maintain the status quo through a voluntary licensing framework.

2. Improve certainty

Explore opportunities to clarify or update how copyright law applies to material generated through the use of AI.

3. Avenues for less costly enforcement

Make it easier to enforce existing rights through a potential new small claims forum to efficiently address lower-value copyright infringement matters."

In her public statements, the Attorney-General also encouraged the tech industry and the creative sector to: "come together and find sensible and workable solutions to support innovation while ensuring creators are compensated."

We explored some of the copyright issues arising from the use of AI in our previous articles, including whether copyright subsists in AI outputs. See: ChatGPT and the legalities of language generation, AI copyright litigation in Australia, and An AI update on the copyright and AI saga: What's new?

This is also not the first time that avenues for less costly enforcement have been raised by the Attorney-General's Department. In particular, it is worth noting that the Attorney-General's Department issued the Copyright Enforcement Review issues paper in 2022 that explored the barriers faced when engaging with the Australian legal system, and whether the introduction of a small claims copyright infringement process of court would streamline consideration of copyright matters in Australia.

This is, however, the first time that there has been a real focus on whether a new paid collective licensing framework under the Copyright Act should be established for AI.

What are the proposed licensing models?

The Attorney-General has specifically referred to the CAIRG exploring paid collective licensing and voluntary licensing frameworks, these models include: a statutory licensing scheme, or a collective licensing scheme for TDM and AI, or maintaining the status quote through a voluntary licensing framework.

• Statutory licensing scheme under the Copyright Act: Australia has several statutory licences in the Copyright Act, these include licences for the use of literary and artistic works by educational institutions, a licence for use of copyright material for the services of the Crown, and a licence permitting the retransmission of free-to-air broadcasts. A statutory licence is a compulsory licence under the Copyright Act that grants broad "blanket rights" to use copyright material, usually in exchange for to the payment of equitable remuneration to a declared collecting society.

  The amount of equitable remuneration is either agreed between the parties or failing that, can be determined by the Copyright Tribunal. The policy justification for a statutory licence scheme is that the costs of identifying and negotiating with copyright owners can be prohibitive, and the schemes are designed to balance access and convenience for users (like education institutions and broadcasters) with remuneration for copyright owners. Copyright owners cannot opt out of a statutory licence and so lose control of whether their works are used, and if so, what is paid for such use.

• Collecting society licensing scheme under the Copyright Act: Collecting society licensing schemes already exist in Australia.  In effect, collecting societies can grant licenses on behalf of their copyright owner members on a voluntary basis, which means that rights holders can opt out if they do not want the collecting society to license their copyright material on their behalf for a particular purpose. Under the Copyright Act, where a collecting society licensor proposes to bring a scheme into operation, they may refer the scheme to the Copyright Tribunal either before or after brining the scheme into operation. Before making orders confirming or varying the scheme (based on what the Tribunal considers reasonable in the circumstances), the Tribunal will consider the scheme and give the parties the opportunity to present their cases.

  The Copyright Act also provides a mechanism for licensees to apply to the Copyright Tribunal when they encounter difficulties in obtaining a licence from a collecting society (including where a licence scheme has not been formulated or is not in operation), or when they consider the licence fee or terms of the licence offered by a collecting society to be unreasonable.

   

  Introducing a new extended licensing scheme administered by a collecting society is also another form of licensing that could be considered.

   

  This option was raised previously in Australia in response to the introduction of an orphan works scheme (see the ALRC's 2013 report on Copyright and the Digital Economy). This approach may involve amendments to the Copyright Act to provide for a collecting society to seek authorisation for a blanket licence (rather than just a licence covering the works of their members) and may also provide for an opt out mechanism for copyright owners. As noted by the ALRC, extended collective licensing was introduced in the UK to help streamline rights clearance for mass digitisation projects where direct licensing was not possible, and has also been introduced in other European countries.

• Voluntary licences negotiated by parties: This autonomous flexible approach is already available to copyright owners and users and gives the parties the ability to negotiate directly with each other. There are already Australian based businesses that have announced that they are negotiating or have negotiated voluntary licenses for the purpose of licensing content for AI training in Australia.

What does this mean for Australian businesses?

For business participating in the CAIRG, they will have the opportunity to provide feedback to the Attorney-General's Department in response to each of the three priority areas outlined by the Attorney-General, and each of the potential licensing models. If you would like to be involved in CAIRG, it is possible to send an expression of interest to the Attorney-General's Department. Further information is available here.

After conclusion of the CAIRG consultation period, the Attorney-General's Department will make the CAIRG consultation paper and a summary of the CAIRG feedback publicly available. If and when there is an announcement regarding the direction the Government will take when introducing a licensing scheme, Australian businesses involved in AI training will need to consider how this will impact their current model and other licensing considerations.