With all the activity in recent weeks in connection with the Attorney-General's announcement that the Government will not be introducing a text and data mining exception, and the Getty Images decision in the UK, you would be forgiven for missing the Copyright Amendment Bill 2025 (Cth) (Bill), which was introduced in Parliament on 5 November 2025.  

The Bill seeks to implement two main reforms to the Copyright Act 1968 (Cth) (Copyright Act) by establishing Australia's first statutory orphan works scheme and clarifying the permitted use of copyright material by schools in online teaching environments.  

The amendments follow a long history of stakeholder consultation and Government reviews of Australia's copyright laws, but ultimately arose from a series of Ministerial Copyright Roundtables held in 2023 which brought together stakeholders from a range of sectors to identify and discuss copyright priorities and emerging issues with a view to developing practical and achievable copyright reform proposals for Government’s consideration. The measures contained in this Bill are intended to implement the policies agreed as a result of these Roundtables and subsequent consultation with relevant stakeholders.

So what does the Bill aim to achieve?

Orphan works scheme

Orphan works is a term used to describe copyright material for which the copyright owner cannot be identified or located. Orphan works present a significant challenge for copyright users given it is not possible to obtain a licence from a copyright owner when that copyright owner cannot be found.

The Bill adds Division 2AAA to the Copyright Act, which sets out a scheme to limit the remedies that are available to a copyright owner for copyright infringement if the owner could not be identified or located at the time of the using of the work.

In particular, a court will be barred from granting relief against an alleged infringer if the following conditions are met:

• a reasonably diligent search was made to locate the copyright owner;
• the search was made within a reasonable period before using the copyright material; 
• a record of the search was maintained; 
• the copyright owner could not be identified or located at the time of use to obtain permission; and
• notice was given (in a clear and reasonably prominent manner) stating that the owner could not be identified and located, and the work is being used under the orphan works scheme.  

In assessing whether these conditions are met, a court may take into account several prescribed factors including the nature of the copyright material, the nature of the infringing use and the likely impact of the infringing use on the copyright owner. The Explanatory Memorandum indicates that what is considered to be a reasonably diligent search may be more onerous for uses of orphan works in commercial contexts or if the owner is likely located overseas.   

In the event that the copyright owner is later identified, the scheme provides that a court may order reasonable payment for the past infringing use. The owner and user may reach an agreement with respect to the terms of any continuing use of the copyright material, or if an agreement cannot be reached, a court may fix reasonable terms or grant an injunction. However, a court cannot order payment for previous personal or household use if the use ceased once the owner was identified or an agreement was made for continuing use.  

The Bill aims to strike a balance between the public interest in improving access to orphan works and the need to preserve the protections and incentives provided to copyright owners. The Explanatory Memorandum also makes it clear that the scheme is not intended to support large-scale uses of copyright materials for training generative AI, as it would be prohibitively burdensome to conduct a reasonably diligent search for each orphan work and to provide notice for each instance of infringing use.

Advocates of this reform believe that an orphan works scheme will greatly benefit Australia's cultural, education, research and government sectors by unlocking access to a vast collection of copyright materials and providing legal certainty with respect to their use. 

Use of copyright material for remote learning

The second objective of the Bill seeks to deal with an issue that became apparent during COVID-19 and the move to remote learning at that time.  

Section 28 of the Copyright Act provides an exception to copyright infringement for educational institutions to allow teachers and students to perform and communicate copyright material "in class, or otherwise in the presence of an audience" in the course of giving or receiving educational instruction provided that certain conditions are met. The original drafting of the section created ambiguity with respect to whether it applied to online and hybrid class settings, and whether it no longer applied when certain people were present.

Schedule 2 of the Bill amends section 28 to make it clear that the exception also applies in the following circumstances:

• in a wholly or partially virtual class environment;
• when other individuals assisting or supporting teachers or students with a lesson (whether virtual or in a classroom) such as parents or classroom aides are present; and
• where persons who are not teachers are providing educational instruction (as long as it is not provided for profit - such as private tutoring). The Explanatory Memorandum contemplates this including a person running a class on behalf of a library or museum.

Section 28 continues to only apply to educational instruction that is given in real time and does not extend to recordings that can be viewed at a later point in time.

Other measures

The Bill also introduces certain minor and technical amendments to the Copyright Act, including to simplify the process for appointing an acting President and Registrar of the Copyright Tribunal.

What happens next

The Bill has been referred to the Legal and Constitutional Affairs Legislation Committee for inquiry with submissions closing on 28 November 2025. The committee's report is due on 19 December 2025.

Please reach out to our intellectual property team for more information about Australia's copyright laws and the proposed amendments, or for assistance with preparing a submission to the inquiry.