FAQs

1. What is an ‘Orphan Work’?

An orphan work is any copyrighted work whose copyright owner(s) cannot be identified or located.

An orphan work can be in any medium, whether text, audio-visual, physical, or digital and assumes a human creator/author not a machine-generated work.

Orphan works are protected by copyright for 70 years after they are first published, or if they haven’t been published after they are created. For example, in 2026, orphan works dating up to and including 1955 are in the public domain unless otherwise specified.

Common types of orphan works include:

• anonymous or pseudonymous works
• unpublished works like letters or diaries, where some details of the author may be known (e.g. a name) but they cannot be further identified or located
• photographs, artistic works or songs with unknown provenance
• government or corporate publications where the publishing entity no longer exists or is not responding to enquiries

2. What is the purpose of the new Orphan Works Scheme?

The Copyright Amendment Bill 2026 amends the Copyright Act 1968 to introduce an Australian Orphan Works Scheme. Its purpose is to facilitate the use of orphan works and provide potential users with greater certainty when they reuse orphaned material. Previously, these works were in a state of legal limbo because there was no way to get permission from the copyright owner, and no general exception under which to reuse them except at the user’s own risk.

The scheme also provides mechanisms for copyright owners and rightsholders to come forward to claim their work(s) and their copyright.

3. How does this affect access to and reuse of orphan works?

Libraries and archives have generally been able to use and provide access to orphan works under Section 200AB of the Copyright Act that permits these items to be made discoverable and accessible to users. Trove is an example of a collection that contains orphan works.

The Orphan Works scheme clarifies the copyright status of these works and provides an avenue for their reproduction and reuse by researchers, creators and the general public.

Importantly, the scheme does not create an exception to allow the use of orphan works. Instead, it limits the remedies available if a copyright owner comes forward after an orphan work has been used. As long as the user has complied with the scheme, they can’t be asked to pay damages for their past use, though if their use is professional or commercial they may still need to pay reasonable licence fees.

The effect is to substantially lower the risk of using these works.

The scheme does not represent a “free for all” approach but balances the rights of users to access and reuse orphaned works with the rights of their creators.

4. Under what conditions can an Orphan Work be reused/repurposed?

Patrons may copy and reuse orphan works, providing that:

• they undertake a diligent search (see section 5) to identify copyright owners and/or rightsholders
• the diligent search is conducted in a reasonable time before the use when they use it, they include a notice that the work is being used for the purposes of the orphan works scheme.

5. What constitutes a diligent search?

A diligent search is the process by which the copyright status of a work is verified as orphaned. It involves trying to identify or locate the copyright owner using whatever information you have about the work and its provenance. If this process fails to produce a creator’s identity, it is reasonable to treat the work as orphaned unless different conditions apply, e.g. the identification of a rightsholder.

How “diligent” a search needs to be is flexible under the scheme, and will change depending on things like the nature of the work and the kind of use being made. At a minimum, it would involve examination of the individual work, any accompanying works, and any available information about the work e.g. in donor files. If a publisher can be identified, it may be reasonable to contact them for information.

For higher risk uses, like publishing the work commercially, you may also want to look at records of collecting societies or industry groups. However, the amount of effort put in should be reasonable and not excessive. National and State Libraries Australasia’s position statement on Reasonably diligent search for orphan works provides examples and standards that may be useful in deciding if a search is sufficiently diligent.

Other useful things to remember about diligent searches include:

• As a rightsholder may be different from the original creator, identifying who currently owns the rights is important. This may be a third party such as a publisher, donor, or relative.
• If some details of a rights holder are known, but they cannot be located, the scheme still applies.
• Searches must be documented to evidence that such a search has been undertaken under the scheme.

The legislation does not require the person who conducted the search and the person who subsequently used the copyright material in reliance of the scheme to be the same person.

In addition, it is a good idea to have policies and procedures to allow owners and rightsholders to claim orphaned works and to update records and copyright status accordingly.

6. How long can you rely on a diligent search?

The scheme states that the diligent search has to be conducted at a reasonable period before the use. This is to encourage users to check regularly whether any new information is available about the rights holder. What constitutes a reasonable period is flexible depending on the nature of the work and the nature of the use. The search must be recent enough that the information gathered is likely still accurate. Other factors to consider are:

• High-Risk vs. Low-Risk Use: If you are using the work in a high-profile commercial manner (e.g., publishing in a book for sale), the recency of the search is more critical than a one-time low-risk use, such as an internal educational presentation.
• Re-evaluation: If you are using a work for a sustained, long-term project (e.g., an ongoing exhibit), you may need to periodically re-verify the search results.

7. What kind of written notice is required?

A written statement when the material is published (e.g., in a caption or disclaimer) clearly stating that the work is an orphan work and is being used under the Orphan Works Scheme. It is intended that such a notice will act as a transparency mechanism, allowing a copyright owner or owners to see if their material has been used in reliance on the orphan works scheme and assert their rights, if needed.

For example, if an orphan work has been incorporated into a published book, the notice may be included on the edition notice page on the back of the title page of the book. If an orphan work has been made available on a website, the notice might be included at the footer of the website or as a pop-up notice when an image is hovered over.

8. Do Orphan Works need to be attributed?

Because there is no identified copyright owner, it may not be possible to attribute an orphan work. However, copyright still applies to the work itself and moral rights to its creator/author, so as much attribution as possible should still be provided.

For example, if the work has a title, a source, a date and any other pertinent metadata, this should be used as part of any reference/citation/credit.

Even if the orphaned work is in the public domain, it is best practice to acknowledge it in any reuse, reproduction or adaptation in good faith.

9. Can orphan works be used under the educational statutory licences and fair dealing exceptions?

Yes. In educational institutions that operate under statutory licences, orphan works can be reused and repurposed under the existing exceptions for teaching and research and under existing fair dealing exceptions.

The Orphan Works Scheme also provides users with a way to opt out of the statutory license provisions if the purpose for the reuse lies outside of the exceptions for education, e.g. for commercial use, under the proviso that they cannot revert to statutory provisions for that same publication if owner(s) come forward. Please consult the legislation for more detail on the commercial use of orphan works.

10. What if an orphan work contains ICIP?

Indigenous Cultural and Intellectual Property (ICIP) constitutes an additional layer of IP that must be applied to the classification, acknowledgement, access and diligent search process.

These steps should be undertaken through adherence to any ICIP-related Protocols that cover existing collections and/or via consultation with the relevant representatives of Aboriginal and Torres Strait Islander communities, noting they may be different from the copyright owner, in line with principles of free, prior and informed consent.

This is consistent with Australia’s support for the principles described within the United Nations Declaration on the Rights of Indigenous Peoples.

11. Can the scheme be used for mass-digitisation?

No. S. 200AB of the Copyright Act is still the most appropriate and applicable exception for use by libraries and archives because it includes orphans and non-orphans. But using the Orphan Works scheme means materials libraries and archives have identified as orphans can be used by patrons, which is not the case when relying on s200AB.

12. Will libraries and archives need to update their records to provide notice that their orphan works are covered under the scheme?

No. Typically, an orphan work has the status of Copyright Undetermined or Unknown that would be included in the metadata of the record, particularly if it was made available using s.200AB. This information captures its orphaned status.

Notice does need to be added to a work should it become orphaned, e.g. if ownership is incorrectly assigned or its status changes and the work is deemed to be orphaned because of that change.

13. What happens if an owner or rightsholder comes forward?

It is quite rare for copyright owners to come forward to claim orphan works. Should this occur, however, they would need to provide some verifiable proof that they are the rightful owner(s) or rightsholder(s) so that the record can be updated and an appropriate license negotiated and assigned.

Under the scheme, their permission is required for any continued use of the work, and they are entitled to ask for reasonable payment for past use of the work that is public or commercial.

If an agreement can’t be reached, the Copyright Act stipulates that the Copyright Tribunal may order a reasonable payment to the copyright owner for infringing use (akin to a licensing fee), but that relief will not be granted for infringing use in the form of

• damages or account of profits;
• additional damages; or
• other monetary relief

In addition, the Tribunal will not order payment where the use was solely for domestic or private purposes and the unauthorised user either ceased using the works or agreed terms for the continued use of the works with the copyright owner.

The Tribunal may also fix reasonable terms for the continued use or grant an injunction if appropriate.

To comply with the document delivery exception (s49) you should take the following steps:

1. To start the process of supply, the client must provide a request that states:
   
   • What material they need;
   • That the material is for their own research and study; and
   • That they have not previously been supplied with the material requested.

If possible, this request should be provided in writing (eg by filling in a form or sending an email). However, if the person cannot provide the request in writing, they can do so verbally with the library/archive keeping records. The librarian who takes the request must record that she/he believes the information is accurate.

2. If more than a “reasonable portion” (ie 10 percent, or one chapter) is requested then the library or archive officer must check if the work is commercially available. If it is commercially available only the 10 percent/one chapter can be supplied. If it is not then the officer must make a declaration stating it is not available. They can then provide the full amount requested by the client.
3. The officer makes the reproduction. Preservation copies may be used to make the copy for supply instead of the original work, for example for efficiency or if the original work is too delicate for scanning. 
4. The officer affixes a notice to the reproduction stating that:
   
   • further dealings with the reproduction may infringe copyright; and
   • that Division 3 of Part III of the Act affects whether further dealings would infringe copyright.

5. The officer supplies it to the client. This can be done either in hardcopy or electronically (eg via email).

6. If the reproduction was supplied in electronic form all electronic copies made in the process that remain at the library/archive must be destroyed in a reasonable time (eg 3 weeks).

Works of artistic craftsmanship are a type of artistic work. Basically material that possesses an artistic quality, were created as a result of the creators craftsmanship and are not mass produced item are an artistic work. This may include embroidery, tapestry, needlework and other crafts, as well as handmade ceramics, handmade jewellery and crafted furniture.

No, there is no need to include the ‘c in a circle’ symbol (©) with your name and date to get copyright protection. However, it can be useful in evidencing copyright ownership and allowing parties who may wish to licence the content from you to identify you.

Best practice is not to assert copyright over digitisations. This is the position supported by the ALCC. The National and State Libraries Australia’s (NSLA) position on Public Domain works also encourages this:

“NSLA supports the principle that public domain is a permanent state: the digital conversion of public domain works undertaken by NSLA libraries does not create a new copyright”. However, some reproductions of public domain works will create a new copyright. For example if an art photographer takes a photo of a painting that includes elements of composition such as special lighting or angles, the photograph will be a separate copyright work. As such, when you are having your public domain material copied it is prudent to ensure the library or archive owns any new copyright created, and consider marking the material as public domain online, so users know they are free to use it.”

Often a copyright notice will be something like this:

© 2019 John Smith

This indicates that John Smith is the author or maker of the material and it was created in 2019.

Other examples of the types of copyright notices include:

Marvel studios

© 2019 Marvel

The notice in the end credit crawl of Marvel Studio’s Avengers: End Game indicates that Marvel Worldwide Inc is the copyright owner and the film was made in 2019.

The Australian Broadcasting Corporation

© 2019 ABC

The ABC’s notice in the footer of their website indicates that the copyright in webpage content is owned by the Australian Broadcasting Corporation.

Griffith Review

© Copyright Griffith University & the author

The notice included in the footer of pages of the Griffith Review indicate that Griffith University (the publisher) and the author of the specific article are the copyright owners.

Australian Government – Australian Communications and Media Authority

© Commonwealth of Australia 2019
With the exception of coats of arms, logos, emblems, images, other third-party material or devices protected by a trademark, this content is made available under the terms of the Creative Commons Attribution 4.0 International (CC BY 4.0) licence.

We request attribution as the Australian Communications and Media Authority Communications report 2017–18. All other rights are reserved.

The notice in the front matter of the Communications report 2017–18 published by the Australian Communications and Media Authority. It indicates the copyright owner is the Australian government (and as such is Crown Copyright). It also informs people that the material is available for reuse under the terms of a Creative Commons licence and makes a request related to how the agency and document should be attributed.

There are a number of myths perpetuated about what you have to do to get copyright protection. Importantly, copyright protection in Australia is free and automatic from the moment the content is in a material form (such as the words of a poem being written down or a song is recorded). There is no application process, no registration requirement and no fees owing. And you do not need to publish your material, send yourself a copy of the material by registered post or even put a copyright notice on it (although these actions may be useful for proving copyright ownership). These requirements are explained further in our information on the requirements for gaining copyright protection.

No. Although a licence is needed to play music publicly at a library (e.g. over a loudspeaker or as part of a concert), a licence is not needed for public access computers on library premises.

A number of public libraries across Australia have been approached by copyright collecting society APRA AMCOS about obtaining a licence for public access computers on their premises, on the basis that individuals might use them to listen to music.

The State Library of New South Wales sought legal advice on the matter, which confirmed that individual listening does not constitute a performance in public under the Copyright Act 1968, and that libraries therefore do not need an APRA AMCOS licence for such activities on their public access computers.

This is different from the situation in which a library might be playing background music for its patrons or staff, or using its venues to host live music. Such activities do amount to a public performance of music, and a libraries should obtain a licence to permit them.

In response to outreach from Australian libraries, APRA AMCOS have amended their licensing policy and have undertaken to no longer approach libraries seeking licences for individual computers.

The copyright law in some countries – most notably the United States – include a broad copyright exception called fair use. In short such provisions permit uses of copyright material so long as the use if fair. This approach does not seek to define a list of uses that are fair.

In Australia we do not have fair use – we have fair dealing. A major difference with the fair dealing approach is that it does prescribe a list of noninfringing uses. In Australia that list covers:

• research or study
• criticism or review
• parody or satire
• reporting the news
• provision of legal advice
• access for people with disability

The Copyright Act protects ‘Works’ and ‘Subject matter other than works’. ‘Works’ include literary, dramatic, musical and artistic works while other subject matter includes sound recordings, films, television and radio broadcasts and published editions of works. For more detail about the types of material protected by copyright see Materials protected by copyright.

Copyright protected material is only protected for the duration of copyright. After copyright has expired material passes into the public domain. Material in the public domain is not protected by copyright.

Copyright also does not protect:

• Ideas
• Information, facts, data, etc
• Concepts, styles, techniques, etc
• Equations, formulas, recipes, etc
• Mass produced fashion and utilitarian objects
• Single words, names, titles, slogans
• People and their image

And copyright does not protect inventions, brands, utilitarian objects or circuit layouts, which are protected by other areas of intellectual property – patent, trade mark, designs and circuit layouts respectively