The Australian Government has recently introduced the Copyright Amendment Bill 2026 (Bill), which seeks to amend the Copyright Act 1968 (Cth) (Copyright Act) to, among other things:
- 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, where the copyright owner cannot be found ; and
- clarify the scope of section 28 of the Copyright Act, which relates to the performance and communication of copyright material in the course of non-profit educational instruction.
The Bill is designed to implement the key outcomes in the Outcome paper on orphan works and the Outcomes paper on remote learning from the Ministerial roundtables.
However, the Bill does not address any changes to the Copyright Act to address the use of copyright materials in AI models, which remains an area of ongoing policy discussion for the Copyright and Artificial Intelligence Reference Group (CAIRG).
This article considers how the proposed amendments will operate, and what areas remain the subject of further debate and discussion.
Orphan works scheme amendments
So-called ‘orphan works’ are copyright material for which the owner cannot be identified or located in order to seek their permission to legally use them. We previously described the proposed orphan works scheme as it first appeared in a 2021 exposure draft.
The current Bill proposes a revised scheme, which seeks to restrict the remedies available to the original copyright owner where the copyright owner(s) could not be identified and located at the time of the infringing use.
As set out in the Explanatory Memorandum, the scheme is intended to provide ‘prospective users with greater legal certainty and to open up access to a larger collection of cultural, historical and educational works held by Australia’s cultural and educational institutions for the benefit of researchers, educators, students, family historians, creators and the wider Australian community’.
Under the proposed scheme, the Court must not order financial remedies for infringing use, where the following conditions are satisfied by the user of the orphan work:
- a reasonably diligent search was conducted for the copyright owner(s);
- the search was conducted a reasonable period before the infringing use;
- a record of the search was maintained for a reasonable period;
- the user could not locate the copyright owner(s) at the time of use; and
- a notice was given in relation to the infringing use, in a clear and reasonably prominent manner, stating that the owner(s) could not be identified or located.
The intention of these conditions is to ensure that instances of a copyright owner being later identified or located are rare. However, if the copyright owner does later come forward, the Bill provides an avenue to assert their rights, including the ability to negotiate reasonable payment from the user. If payment is not agreed upon, the Court may make an order as to reasonable terms, or provide injunctive relief in relation to continuing use. However, the Court cannot order reasonable payment if the use was for private and domestic purposes, and either the user immediately ceased use or the parties entered into a separate agreement for continuing use.
Educational use of copyright
Section 28 of the Copyright Act provides that teachers and students can perform or communicate copyright material in class or otherwise in the presence of an audience, in the course of non-profit educational instruction, without it being considered a ‘public performance’ or ‘communication to the public’ requiring permission or payment.
However, there has been lingering uncertainty as to whether this exception applies to online or hybrid learning, and whether the provision applies to parents and other community members assisting with the learning.
The Bill seeks to address this uncertainty by clarifying that the section applies consistently, to live classes, whether they are in person or online. Under the proposed amendments, section 28 will also apply when:
- a live online or hybrid class is conducted for the purposes of educational instruction;
- someone other than a professional teacher is involved, including a parent or other person who assists a student or students with their lessons; or a third party, such as a member of the local community, provides the educational instruction.
The proposed amendments are not intended to cover paid tutoring arrangements or presentations offered on a commercial basis.
Future amendments regarding AI
The Government is continuing to consult on possible updates to Australia’s copyright laws within the context of artificial intelligence. The Productivity Commission’s September 2025 interim report on Harnessing Data and Digital Technology noted that the “Australian copyright regime is not keeping pace with the rise of AI technology”, due to both inadequate facilitation of the use of copyright works, and the ability of AI developers to easily sidestep existing licensing and enforcement frameworks.
Since then, the Attorney-General has confirmed that it has “no plans to weaken copyright protections when it comes to AI” and provided certainty by “ruling out introduction of a text and data mining exception to copyright infringement”. which would allow copyright materials to be used without payment or permission for the purpose of training AI models.
The Government also announced three priorities for the CAIRG in this space:
- encouraging fair legal avenues for use of copyright material in AI through consideration of licensing arrangements;
- improving certainty on the application of copyright law to AI-generated material; and
- exploring avenues for less costly enforcement in relation to AI outputs-related infringement, including potentially through a small claims forum.
In respect of the possible legal avenues for using copyright material in AI, three options are now under further consideration:
- maintaining the current status quo of a purely voluntary, market-driven licensing regime;
- the creation of a new compulsory statutory licensing scheme (similar to that in place for the use of copyright materials by educational institutions, libraries and government); or
- the introduction of a collecting society licensing scheme under the Copyright Act (similar to those already established for music, art, film and other copyright material).
The CAIRG is now building on the discussions of an October 2025 meeting by considering stakeholder submissions in response to its Copyright and AI Consultation Paper, the outcome of which will shape the next stage of policy development in this area.
AI providers in Australia, who will no doubt have been watching the outcomes of recent overseas cases (on which our colleagues have reported here, here, here and here) with great interest, will also be keen to see what path Australia is likely to follow in dealing with these complex issues.
Key takeaways
The future of the Australian copyright landscape will undoubtedly be shaped by the need to maintain the precarious balance between the protection of creativity and innovation, and the increasing pressure of technological development, particularly AI.
The Bill has passed the House of Representatives and had its second reading speech in the Senate.
Further updates can be expected in the coming months, following the receipt of submissions in response to Consultation Paper, and the passage of the Bill, and we will be following the implementation of the reforms closely at that time. However, as with many areas of copyright law, the challenge will be ensuring that any legislative and policy changes keep pace with the ever-more rapid technological advances in the AI space.
If you would like to discuss these issues further, please contact Jackie O’Brien, Partner and Georgina Hey, Partner.
The authors wish to thank Anjali Dutton, summer clerk, for her assistance with this article.
