Understanding the Copyright Act’s New Orphan Works Scheme August 10, 2026

Experienced production teams are well acquainted with the creative limitations that the Copyright Act 1968 (Cth) places on filmmaking, especially when lead creatives wish to incorporate third-party works into the production material.

‘Clearing’ third-party works for use in a film is particularly challenging in Australia, given the limited scope of our ‘fair dealing’ defences, which makes licensing a third-party work really the only option to ensure delivery of a film free from claims in many cases.

Frustratingly, under the previous law, if a third-party copyright owner could not be located, even after diligent searches, there were no safe harbour provisions that permitted the use of their work, despite it being effectively ‘un-licensable’.

With the introduction of the Orphan Works Scheme under the Copyright Amendment Act 2026 (Cth), clearing such works has become significantly easier for producers.

What Is the Orphan Works Scheme?

The Copyright Amendment Act 2026 introduced a number of provisions that limit the legal remedies available to those who hold copyright in these so-called ‘orphaned’ works when another person makes an infringing use of them.

It is important to note that just because a work is orphaned does not mean a use of it is not infringing, nor that the author has lost copyright in it. Rather, the author of an ‘orphaned’ work is limited to being able to claim only a ‘reasonable payment’ for an infringing use of their work in any action for copyright infringement that they maintain. The owner of the orphaned work cannot claim damages or an account of profits, additional (ie punitive) damages, or other monetary relief for that infringing use.

These restrictions essentially mean the person who uses the orphaned work just has to retrospectively pay a commercially reasonable licence fee for their use of the orphan work.

What Happens If the Copyright Owner Surfaces Later?

Furthermore, the scheme not only encourages out-of-court settlement for these disputes, but also facilitates the continuing use of such works. The owner of copyright in the orphaned work may only apply for injunctive remedies if an agreement on the continuing use of the work cannot be reached. When making an order, the court can either fix reasonable terms for the continuing use, or restrain the person who used the work from continuing to use it. If a use of an orphaned work becomes subject to an agreement or order for continuing use, it will no longer be an infringing use.

In determining the reasonable terms for a continuing use, judges will have regard to, amongst other considerations, the purpose behind the use of the orphaned work, as well as the impact of the continuing work on the copyright owner. This analysis offers far more scope to consider the interests of the person who makes use of the work than is ordinarily available to a defendant in an action for copyright infringement.

While this scheme does carry some commercial risk, since injunctive relief is still available to the copyright holder, the scheme significantly curtails the statutory monopoly that copyright owners usually have, making it easier to ‘clear’ (and budget for) the commercial use of an orphaned work in a film. It is also worth noting that the scheme only has effect from 2 April 2026, so it will not protect uses made of orphaned works before that date.

When Is a Work Considered Orphaned?

All these protections are contingent on the work actually being orphaned. A work is considered ‘orphaned’ if the defendant could not identify the owner of the copyright after following a number of due diligence procedures, including:

• Conducting a reasonably diligent search for the copyright owner.
• Ensuring the search was conducted within a reasonable period before the infringing use.
• Maintaining records of the search for a reasonable period.
• Giving reasonably prominent and clear notice that the work is considered orphaned and that the user is relying on the Orphan Works Scheme.

While the Minister has the power to define these procedural requirements more clearly, they have yet to do so.

Conducting a Reasonable Search

In the meantime, and since the Act provides that industry guidelines are relevant to determining the reasonableness of a search, production teams are encouraged to familiarise themselves with the National Film and Sound Archive’s tips for tracking down the copyright holder, which provides guidance on the concept of ‘scalable’ searches, ensuring that the cost and comprehensiveness of a search is proportionate to the interests at stake in the proposed use.

Your Obligations as the User

Notice requirements for films have also not been formally defined, but many broadcasters have their own policies for dealing with orphaned works, so drafting an appropriate notice may not necessarily be a task that falls to the production company in every case.

However, as the party who uses the orphaned work bears the burden of proving that the work is orphaned in an action for copyright infringement, it is important that production teams comply exactly with these due diligence requirements and ensure they have adequate processes and record-keeping facilities in place if they intend to use an orphaned work in their film.

What This Means for Your Next Production

Although there may be some increased compliance costs at the front end, and the risk of defending a (less costly) infringement action remains at the back end, the Orphan Works Scheme has opened up greater avenues for production teams to achieve their original creative vision.

marshalls+dent+wilmoth’s entertainment law team is across these changes and can assist any production teams seeking to navigate the new protections and due diligence requirements. Get in touch if you have questions about whether you are dealing with an orphaned work, and how to move towards clearing it for use in your film.