Orphan Works, Living Cultures: What the Copyright Amendment Bill Means for ICIP
- TJC
- 6 hours ago
- 4 min read
17 November 2025
Dr Terri Janke
On 5 November 2025, the Australian Government introduced the Copyright Amendment Bill, including a new orphan works scheme designed to update copyright law for the digital age.
Under this model, users will be able to rely on a limitation-of-remedies defence when using an orphan work, but only if they meet five strict threshold conditions. Importantly, the Bill and its Explanatory Memorandum also highlight that a higher standard will apply where Indigenous Cultural and Intellectual Property (ICIP) is involved.
This signals a constructive shift that Australia is beginning to align copyright reform with cultural authority, free, prior and informed consent (FPIC), and Indigenous self-determination.
Understanding Orphan Works and the Proposed Scheme
An orphan work is a creative work — such as a photograph, artwork, or recording — where the copyright owner cannot be identified or located.
The proposed scheme would allow the use of orphan works after:
1. A “reasonably diligent search” has been conducted.
2. The search occurred within a reasonable period before the use.
3. A record of the search is retained for a reasonable period.
4. At the time of use, the owner was not identifiable or locatable.
5. A clear and “reasonably prominent” notice is provided stating that the owner could not be found and that the work is being used under the orphan works scheme.
A Higher Standard for ICIP – A Positive Shift
The Explanatory Memorandum confirms that higher search standards will apply where:
• the user intends to commercially exploit the work;
• the owner is likely to be located overseas;
• the work contains ICIP; or
• the intended use is likely to affect the rights or commercial intentions of the owner.
In the case of ICIP, users should seek FPIC from the Indigenous groups to whom the ICIP relates, recognising that these cultural groups may be different from the copyright owner.
This approach aligns with Article 31 of the UN Declaration on the Rights of Indigenous Peoples and the Australian Government’s commitment, under Revive, to introduce standalone ICIP legislation, beginning with the visual arts and craft sector.
Opportunities for Indigenous Communities
If implemented with care, the scheme may support Indigenous communities to:
• reconnect with cultural materials long separated from custodians;
• access records that strengthen language revival, truth-telling and, cultural education;
• preserve cultural materials through digitisation; and
• build cultural governance through better access to historical archives.
Digitisation has the potential to help communities reclaim, reconnect, and revive cultural knowledge that might otherwise be lost to time. However, this is only possible if the material is handled carefully and communities are continually consulted and respected throughout the process.
Ensuring Care in Practice
Some orphan works may contain sacred, secret, or sensitive content — knowledge that is not meant for general public access. Without relevant community engagement, institutions may inadvertently release knowledge that should be restricted. Further, if a work is digitised or made public without understanding its cultural context, the harm can be deep and lasting.
During internal discussions, Senior Solicitor Shevaun Wright reflected on cases where institutions debated digitising documents written in Indigenous languages. She noted that:
“If something is an orphan work, there are additional risks if the document has not been translated — probably because the source community cannot be found — as it may contain sensitive information.”
Balancing Access and Protection of Copyright Owners’ Rights
While the process a user must follow should mean that instances of a copyright owner later being identified or located are rare, the Bill provides protections for copyright owners when this occurs. Should a copyright owner emerge later, the scheme will allow the copyright owner to seek reasonable payment for the past use, which is potentially a licence fee. If a user wishes to continue to use the copyright work in the same way, the scheme will also provide for the user and the copyright owner to negotiate terms for the continuing use. If the user and owner cannot reach agreement on continued use, and the limitation-of-remedies defence applies, the court may set reasonable licensing terms or issue an injunction.
A Constructive Pathway Forward
To meet the higher standards for ICIP and to act respectfully, collection institutions and businesses using orphan works that may include ICIP need to have strong systems in place for looking after cultural materials. This means they should:
Create and follow ICIP policies that explain how staff should handle Indigenous cultural material and who makes decisions about it.
Use ICIP notices and cultural warnings on websites, databases and displays so people know when material may be sensitive.
Keep good records about each item, including where it came from, which community it may be connected to, the language group, dates, and its provenance.
Set up clear consultation processes so they can identify and talk with the right Indigenous communities before putting cultural materials online, publishing them or using them in other ways.
Build long-term relationships with communities.
Train staff in ICIP awareness, cultural safety and FPIC so they understand how to work respectfully.
Make sure their systems have audit trails, meaning decisions can be checked and tracked to show they were made properly.
These steps will not only help institutions meet the higher standards required under the orphan works scheme, but will also demonstrate respect for Indigenous cultural authority.