Copyright Amendment Act 2026

The Copyright Amendment Act 2026 is a Commonwealth Act that amends the Copyright Act 1968. It received Royal Assent on 1 April 2026 and the whole Act commenced on 2 April 2026.

The Act has three broad sets of changes. First, it introduces a new orphan works regime that can limit remedies in some copyright infringement actions where the owner could not be identified and located at the time of use. Second, it updates the educational instruction exception so it more clearly accommodates remote and hybrid learning. Third, it makes a range of other amendments dealing with appointments, archives, notifiable instruments and Crown copyright.

For most businesses, the orphan works changes are the main practical issue. They may reduce exposure in the right case, but they do not create a licence and they do not automatically make a use lawful. The regime is best understood as a conditional limitation on remedies that depends heavily on process, evidence and timing.

The Act amends the Copyright Act 1968 through three schedules.

Schedule 1 inserts a new Division 2AAA into Part V dealing with limitation on remedies when an owner cannot be found. It also makes a related amendment to section 113Q about copying or communicating by educational institutions where a notice under the new orphan works provisions is involved.

Schedule 2 updates section 28, which deals with educational instruction, so the provision works more clearly for instruction delivered in person, through technology, or through a combination of both. It also clarifies that a person can be taken to be taking part in educational instruction if they are assisting or otherwise supporting the teacher, other person giving the instruction, or a student receiving it.

Schedule 3 makes other measures. These include appointment changes, updated references to archives bodies, replacing some Gazette notice requirements with notifiable instruments, and amendments stating that certain duration provisions for Crown copyright operate subject to Part VII.

The orphan works regime is potentially relevant to any person or business facing an action for infringement of copyright where the owner or owners could not be identified and located at the time of the infringing use. In practice, that can affect publishers, agencies, documentary producers, community organisations, archives, museums, online platforms, retailers using historical imagery, and businesses republishing older or unattributed material.

The remote learning amendments are most relevant to education providers, training organisations and edtech operators that rely on section 28 for live or near-live teaching activity. The administrative and notifiable instrument changes are more likely to matter to collecting societies, specialist copyright users and businesses interacting with Copyright Tribunal processes. The Crown copyright amendments are relevant to businesses using government-origin material or contracting with government bodies.

Businesses that are usually outside the main practical impact are those that only use material they create themselves, only use material under clear licences, or do not deal with educational delivery, archival material, collecting society processes or government-origin content. Even then, the orphan works regime can still become relevant if a business later wants to use unattributed third-party material.

The new Division 2AAA states that its purpose is to limit the remedies that may be available for infringement of copyright where the copyright owner or owners could not be identified and located at the time of the infringing use. That wording matters. The Division is not framed as a permission or exception. It is framed as a limitation on remedies in infringement proceedings.

If the conditions in section 116AAE are satisfied, a court must not grant damages, an account of profits, additional damages or other monetary relief against the defendant in respect of the infringing use. However, the court may order the defendant to make reasonable payment to the copyright owner or owners in respect of the infringing use. There is also a specific carve-out where that reasonable payment power does not apply if the use was solely for private and domestic use and either the defendant promptly ceased use of the material or the parties entered into an agreement for continuing use.

The burden of proving that the conditions are satisfied is on the defendant. For businesses, that means the regime is only as strong as the evidence you can produce later. If your search steps, dates, records and notices are patchy, the practical value of the regime may be limited.

To rely on the limitation on remedies, the defendant must prove all of the statutory conditions in section 116AAE.

First, a reasonably diligent search for the owner or owners of copyright in the material must have been conducted. Second, the search must have been conducted within a reasonable period before the infringing use. Third, a record of the search must have been maintained for a reasonable period. Fourth, at the time of the infringing use, the defendant must have been unable to identify and locate the owner or owners. Fifth, notice must have been given in relation to the infringing use stating that the owner or owners could not be identified and located and that the notice is being given for the purposes of the Division. The notice must also be given in a clear and reasonably prominent manner.

The Act does not set a single fixed checklist for what counts as a reasonably diligent search or a reasonable period. Instead, it says that, for search and timing, the court may take into account the nature of the material, the nature, purpose and character of the use, whether the owner is likely to be in a foreign country, the actual or likely impact on the owner, the way the search was conducted, any relevant industry guidelines, and any matters later determined by the Minister. For records of search, the court may take into account the duration of the infringing use, when the use ceased, and any matters later determined by the Minister.

This means the required effort is context-sensitive. A low-impact, one-off use of obscure material may not call for the same search process as a prominent commercial campaign or a long-running publication. But in every case, the business should be able to show what it did, when it did it, and why it concluded the owner could not be identified and located.

For most businesses, the orphan works regime will succeed or fail on internal process. The Act expressly requires a record of the search to be maintained for a reasonable period and requires notice to be given in a clear and reasonably prominent manner. It also allows the Minister, by legislative instrument, to determine requirements for notice prominence, matters that may be taken into account regarding search, and matters that may be taken into account regarding records of search.

That means businesses should not treat the current wording as the end of the compliance picture. If legislative instruments are made, they may affect what is expected in practice. A business that wants to rely on the regime should check whether any such instruments are in force before using the material.

A sensible operational approach is to create a file for each item of material. That file can include a copy of the material, the proposed use, the date the use is intended to start, the search steps taken, the sources checked, the dates of those checks, the outcome of each step, the reason the owner could not be identified and located, and a copy of the notice used. If the use changes later, or if the material is reused in a new context, the business should reassess whether the earlier search is still recent enough and whether the notice remains appropriate.

The Act also makes a related change for educational institutions in section 113Q. Where copying or communicating is covered by a notice under subsection 116AAE(6), it is not licensed copying or communicating for the purposes of subsection 113Q(2A). The Act also allows the Minister, by legislative instrument, to specify circumstances, recipients and requirements for giving a copy of that notice in the educational institution context. The Act says that failure to comply with that copy-giving requirement does not affect subsection 113Q(2A).

The Act anticipates that an owner may later come forward. Even where the limitation on remedies applies, the court may order reasonable payment to the owner for the infringing use, subject to the private and domestic use carve-out described above. So the regime does not necessarily eliminate all financial consequences.

The Act also creates a pathway for continuing use. The defendant and the owner may agree terms for the continuing use of the material. If they cannot agree, either side may apply to the court for an order fixing reasonable terms for continuing use or granting an injunction on terms the court considers appropriate.

When deciding what constitutes reasonable terms for continuing use, the court must take into account the nature of the material, the nature, purpose and character of the continuing use, the actual or likely impact on the owner, whether there was a break between the original infringing use and the continuing use, and any costs incurred by the defendant in connection with the continuing use. If terms are agreed or fixed and those terms are complied with, copyright is not infringed for that continuing use.

For businesses, the practical point is that an orphan works workflow should include a response plan if an owner gets in touch. That may involve pausing the use, opening a licensing discussion, or reassessing whether continuing use is commercially worthwhile.

The whole Act commenced on 2 April 2026. The application provision for the new Division 2AAA says it applies in relation to use that occurs, or begins to occur, on or after commencement. That is an important timing point. Businesses should not assume the regime applies to earlier uses simply because a dispute arises later.

Because the Act is in force and the orphan works provisions are already commenced, businesses considering use of unattributed material now should review their current clearance process immediately. The key timing question is not only when the Act commenced, but also whether your search was conducted within a reasonable period before the use and whether the use itself occurs on or after commencement.

Schedule 2 updates section 28 of the Copyright Act 1968. The amendments replace wording that focused more heavily on physical presence and adjust the section so it can operate where instruction is given to participants, including by a teacher or other person, and for a place where or for which instruction is given.

The Act adds that a person is taken to be taking part in educational instruction if the person is assisting or otherwise supporting a teacher or other person giving the instruction, or a student receiving the instruction. It also states that section 28 applies to educational instruction conducted in person, using technology that allows a person to take part without being physically present, or using a combination of those methods.

There is an important limit. For a person taking part using technology, the section applies only if the person takes part at the same time, or at substantially the same time, as the educational instruction is given. For education businesses and training providers, that means live and near-live delivery is the clearest fit under the amended wording. If your business records sessions and later offers them as a stand-alone on-demand library, you should not assume the same analysis applies.

Schedule 2 also includes a compensation mechanism if the operation of the Schedule would otherwise result in an acquisition of property otherwise than on just terms. That is a constitutional safeguard rather than a day-to-day operating rule, but it is part of the Act.

Schedule 3 contains several additional amendments.

Part 1 changes certain appointment functions. For example, section 142 is amended so it refers to the Minister rather than the Governor-General. Some functions relating to the Registrar of the Copyright Tribunal are shifted to the Chief Executive Officer and Principal Registrar of the Federal Court of Australia. The Act also includes transitional provisions so existing appointments and instruments continue to operate as if made under the amended arrangements.

Part 2 updates the statutory references in the definition of archives to reflect current State and Territory archival bodies, including updated references for New South Wales, Victoria, Queensland, Western Australia, South Australia, Tasmania and the Northern Territory.

Part 3 replaces certain Gazette notice requirements with notifiable instruments across a range of provisions dealing with declarations, revocations and appointments. The application provisions make clear that these amendments apply to declarations, revocations, appointments, amendments or revocations happening after commencement, depending on the provision.

Part 4 amends provisions concerning duration of Crown copyright by stating that sections 33, 93 and 96 have effect subject to Part VII, and it also amends section 180. The application provision says these amendments apply in relation to copyright material made before, on or after commencement. Because this is amending text rather than a full restatement of the current law, businesses dealing with government-origin material should check the consolidated Copyright Act before drawing conclusions about duration or ownership.

Part 4 also includes a compensation mechanism if the operation of that Part would otherwise result in an acquisition of property otherwise than on just terms.

If your business regularly uses found images, historical material, unattributed recordings, old publications or user-supplied content with unclear ownership, this Act makes process discipline more important. The orphan works regime may help in the right case, but only if you can prove the conditions. A casual internet search, an undocumented assumption that the owner is impossible to find, or a missing notice will weaken your position.

If your business is in education or training, review how your classes are delivered. The amended section 28 is clearly designed to accommodate remote and hybrid participation, but it still focuses on participation happening at the same time, or substantially the same time, as the instruction is given. If you also create recorded libraries, self-paced modules or long-term content repositories, those uses should be assessed separately.

If you deal with government-origin material, archives or collecting society processes, the Act contains useful updates, but the safest approach is to read the current consolidated Copyright Act 1968 and any relevant instruments together. This is especially important because the Act is an amending Act and some practical detail may depend on later instruments.

This page is based on the Federal Register of Legislation entry for the Copyright Amendment Act 2026, No. 29, 2026. The Act was assented to on 1 April 2026 and the whole Act commenced on 2 April 2026.

Because this is an amending Act, the operative law for day-to-day use sits in the Copyright Act 1968 as amended. Before relying on a summary, businesses should check the current consolidated Copyright Act 1968 and any legislative instruments made under the new provisions.