The Bill inserts a new Division 2AAA into Part V of the Copyright Act 1968 that limits courts’ monetary remedies for infringing uses where the copyright owner could not be identified and located, subject to a defendant proving they conducted a reasonably diligent search, kept a record, and gave a clear notice. Instead of damages or accounts of profit the court must refuse monetary relief and may order a reasonable payment or set terms for continuing use; the Minister may make legislative instruments defining search and notice requirements.
The Bill also updates the education exception and section 28 to accommodate remote learning (including synchronous participation and persons assisting instruction), replaces many Gazette publication requirements with publication by notifiable instrument, moves certain appointment powers to the Chief Executive Officer and Principal Registrar of the Federal Court, updates the statutory list of state archival authorities, and makes several provisions subject to Part VII and to constitutionally required compensation where acquisition of property may occur. These changes affect schools, universities, libraries, cultural institutions, collecting societies, rights holders and courts—rebalancing access and procedural burdens without changing core copyright ownership rules.
At a Glance
What It Does
Creates Division 2AAA which prevents courts from awarding damages, accounts of profits, or other monetary relief for infringing uses when the owner cannot be found, provided a defendant proves a reasonably diligent search, maintained records, and clear notice; courts may instead order a reasonable payment or fix terms for continuing use. Separately, the Bill broadens the education exception to cover remote and substantially‑synchronous participation and updates administrative and publication processes across the Act.
Who It Affects
Educational institutions (schools, universities, TAFEs) and teachers using copyrighted material remotely, libraries and cultural institutions that use orphan works, collecting societies and copyright owners seeking remedies, federal courts and the Copyright Tribunal, and agencies responsible for making legislative instruments and notifiable publications.
Why It Matters
The Bill changes enforcement incentives: claimants who cannot be located lose access to traditional monetary remedies while users who follow search and notice rules gain safer room to operate. It also modernises the education exception for online teaching and centralises administrative steps—shifting compliance work onto institutions and delegating substantive detail to Ministerial instruments.
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What This Bill Actually Does
The Bill tackles three distinct problems: how to treat works whose copyright owners cannot be found, how the education exception operates when instruction is remote, and how administrative powers and publications under the Act are managed. For orphan works it inserts a new Division (2AAA).
That Division does not change who owns copyright; instead it limits the legal remedies available to an owner who could not be located at the time of an infringing use. If a defendant proves a set of conditions—principally that they conducted a reasonably diligent search shortly before the use, kept a record of that search for a reasonable time, could not identify or locate the owner, and gave a clear prominent notice—the court must refuse monetary relief (damages, account of profits, additional or other monetary relief).
The court retains the power to order a reasonable payment or to set or approve terms for continuing use, and may grant injunctive relief where appropriate.
The Bill deliberately leaves many of the operational details to the Minister. The Minister can, by legislative instrument, specify what counts as a reasonably prominent notice, what factors count in a reasonably diligent search, and what matters must be recorded.
The defendant bears the legal burden of proving the conditions are met. The Division also sets out factors the court must consider when deciding reasonable terms for continuing use (for example, the nature of the material, the purpose of the use, impact on the owner, and costs incurred by the defendant).
There are carve‑outs—if the use was solely private and domestic or the parties promptly reached an agreement, some limits do not apply.On education, the Bill amends the statutory copying and communicating provisions to make clear that copying or communicating used in conjunction with a 116AAE notice is not treated as licensed copying under the existing educational licence rules—effectively subjecting some educational uses to the orphan‑works framework. It also rewrites section 28: replacing phrases like "in the presence of" with "to", expanding "teacher" to "teacher or other person", and adding an express provision that a person who "assists or otherwise supports" teaching (for example a parent helping a child) can be treated as taking part in instruction.
Critically, the updated section applies to instruction delivered "using technology" but only when participation is at the same time, or substantially the same time, as the instruction—i.e., it primarily covers synchronous or substantially synchronous remote learning rather than wholly asynchronous distribution.Schedule 3 aggregates administrative and technical reforms. Multiple provisions that previously required publication "in the Gazette" are switched to publication by "notifiable instrument," several appointment powers are shifted (for instance some roles now appointed by the Chief Executive Officer and Principal Registrar of the Federal Court rather than the Minister or Governor‑General), and the statutory list of recognised state archival bodies is updated to reflect more recent state statutes.
Several items include express application provisions and a standard compensation clause: if any amendment amounts to an acquisition of property on non‑just terms the Commonwealth is liable to pay compensation and parties may litigate quantum in the Federal Court or a state supreme court.
The Five Things You Need to Know
Division 2AAA bars courts from awarding damages, accounts of profits, additional damages or other monetary relief for an infringing use where the defendant proves the conditions in section 116AAE (including a reasonably diligent search and a clear notice) were met.
The defendant bears the burden of proving the Division 2AAA conditions—search timing, content and record‑keeping—and the Minister may, by legislative instrument, prescribe what those search and notice requirements mean.
If Division 2AAA applies the court may still order a "reasonable payment" to the copyright owner or fix reasonable terms (or an injunction) for continuing use; agreed or fixed terms convert continuing use into non‑infringing use.
Section 28 is rewritten so the education exception covers instruction delivered "to" students (not just "in the presence of"), includes persons "assisting or otherwise supporting" instruction, and applies to technology‑based participation only when it is at the same time or substantially the same time as the instruction.
The Bill replaces a range of Gazette publication requirements with publication by notifiable instrument, transfers some appointment powers to the Chief Executive Officer and Principal Registrar of the Federal Court, and updates the list of recognised state archival bodies in the Act.
Section-by-Section Breakdown
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Orphan‑works framework: limits on monetary remedies
This new Division establishes a conditional safe‑harbour style remedy: if a defendant proves a reasonably diligent search was performed within a reasonable period, a record of the search was kept, the owner could not be identified or located at the time of use, and a clear notice was given, the court must not award monetary remedies (damages, accounts, additional monetary relief). Instead the court can order a reasonable payment or set terms for continuing use. The provision also describes factors courts can consider and explicitly places the burden of proof on the defendant, while giving the Minister power to issue legislative instruments that define notice and search requirements. Practically, this shifts the dispute from an automatic damages calculus to a process‑driven inquiry and a judicial assessment of reasonableness when owners are unlocatable.
Interaction with educational licensing
The Bill amends the definition of 'licensed copying or communicating' to exclude uses that are covered by a 116AAE(6) notice in relation to an educational institution. In effect, some educational uses that would otherwise be treated as authorised by education‑sector licences may instead fall within the orphan‑works limitation if the required notice and search criteria are met. For compliance officers this means educational copying that relies on the orphan‑works pathway must satisfy the Division 2AAA conditions, not the traditional educational licence rules.
Remote and assisted learning: broadened education exception
Amendments to section 28 replace 'in the presence of' with 'to' and add 'teacher or other person', explicitly broaden the category of people 'taking part' in instruction to include those assisting or supporting instruction (for example a parent or aide), and extend the section to instruction delivered using technology. The protection applies to persons participating at the same time or substantially the same time as the instruction—targeting synchronous remote delivery. This clarifies that many kinds of live online teaching fall within the education exception, but it does not extend the same protection to purely asynchronous distribution unless participation is substantially contemporaneous.
Administrative modernisation and publication change
The Bill updates multiple clauses that required publication 'in the Gazette' so that the same actions are done by 'notifiable instrument,' and shifts certain appointment powers (for example some references to the Minister are replaced by the Chief Executive Officer and Principal Registrar of the Federal Court). It also refreshes the statutory list of state archival authorities recognised in the Act. Mechanically, this centralises some operational authority, speeds administrative action, and changes the way interested parties find official notices (moving from Gazette publication to the notifiable instrument regime).
Subjecting certain Crown‑copyright provisions to Part VII and compensation safeguards
Several provisions that previously operated independently are made 'subject to Part VII', and the Bill amends cross‑references in sections governing Crown copyright ownership. The items include express application provisions and a standard constitutional compensation clause: if an amendment amounts to an acquisition of property otherwise than on just terms, the Commonwealth is liable to pay reasonable compensation and disputes on quantum can be litigated in the Federal Court or state supreme courts. That drafting anticipates and attempts to contain potential constitutional challenges under section 51(xxxi).
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Every bill creates winners and losers. Here's who stands to gain and who bears the cost.
Who Benefits
- Educational institutions (schools, universities, TAFEs): They gain clearer statutory cover for synchronous remote teaching and for some uses of orphan works when they comply with the new search-and-notice regime, reducing the immediate risk of large statutory damages for online instruction.
- Libraries, museums and cultural institutions: These institutions get a practical avenue to use orphan works without facing automatic monetary liability, provided they follow the reasonably diligent search, record‑keeping and notice requirements.
- State archival authorities and named institutions: The Act updates and recognises state archive bodies in the federal statute, clarifying statutory status for inter‑jurisdictional preservation and reuse activities.
- Students and remote learners: By explicitly covering synchronous remote instruction and allowing assistants (e.g., parents) to be counted as taking part, the Bill reduces legal friction around the delivery and consumption of live digital teaching.
Who Bears the Cost
- Copyright owners (authors, rightsholders and heirs): Owners who cannot be located at the time of unauthorised use lose access to traditional monetary remedies and must instead pursue negotiated 'reasonable payments' or court orders for terms, which may yield lower recoveries and delay compensation.
- Educational and cultural institutions (compliance burden): Schools, universities and libraries must document searches, give prominent notices, and potentially defend that they satisfied Division 2AAA—adding administrative overhead and litigation‑risk management tasks.
- Collecting societies and the Copyright Tribunal: Changes to declaration, revocation, and publication processes alter operating rules for collecting societies and the Tribunal; societies may face changed timelines and procedural uncertainty while adapting to 'notifiable instrument' publication and revised revocation formalities.
- The Commonwealth (potential compensation liability): Multiple items include express compensation clauses to address constitutional acquisition risks, exposing the Commonwealth to claims and litigation costs where amendments are treated as acquisitions on non‑just terms.
Key Issues
The Core Tension
The Bill trades stronger, more predictable public access to orphan works and modernised remote‑learning permissions for weaker immediate monetary protections for absent rightsholders and heavier compliance tasks for institutions; the central dilemma is whether improved practical access and administrative agility justify delegating detailed standards to instruments and reducing owners' monetary remedies when proprietors cannot be located.
The Bill deliberately shifts detail to secondary instruments. Giving the Minister power to determine what counts as a reasonably diligent search, what matters courts may take into account, and what notice requirements are 'reasonably prominent' helps tailor rules to different sectors, but it also defers critical operational definitions away from primary legislation.
That delegation creates regulatory uncertainty until instruments are made and may produce uneven compliance across institutions. The burden of proof rests on defendants; in practice institutions seeking to rely on Division 2AAA will need documented checklists, search logs and notice records, which increases the operational cost of otherwise 'permissionless' uses.
Limiting monetary remedies to encourage use of orphan works and remote instruction reduces the immediate exposure of users but raises distributional concerns. Owners who are temporarily unlocatable may receive lower or delayed compensation, and the door is open to litigation over whether a search was 'reasonably diligent'—a fact‑intensive inquiry that could shift disputes from liability to process.
Replacing Gazette notices with 'notifiable instruments' is administratively efficient but may reduce discoverability for smaller stakeholders who track Gazette publications; it also concentrates the government's control over when and how notices appear. Finally, the repeated inclusion of compensation clauses acknowledges constitutional risk under section 51(xxxi) but signals that the Commonwealth expects to face claims—practical fiscal exposure that is unspecified in the Bill.
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