Orphan Works Scheme FAQ

This FAQ has been created to support Australian libraries and archives on the use of the Orphan Works Scheme. It is not intended as general or legal advice.

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• unpublished works like letters or diaries, where some details of the author may be known (e.g. a name) but they cannot be further identified or located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.