Australian Experts Warn AI copyright changes could breach Constitution

On Oct. 27, 2026, the attorney general’s department acknowledged constitutional concerns about proposed AI copyright law changes, and legal experts warned the changes could breach the Constitution. The warning comes as the government considers reforms that would allow AI companies to train on copyrighted music, books, and journalism without seeking permission. Critics argue that such a law could amount to an acquisition of property without just compensation, violating Section 51 of the Constitution.

Section 51 of the Australian Constitution empowers the federal government to make laws about the acquisition of property on just terms, a provision that legal experts say the government could invoke if AI companies gain the right to scrape copyrighted material. The concern is that by allowing AI firms to use protected works without permission, the government might be effectively taking property from rights holders without compensation. This constitutional safeguard has become a central point of debate as the government shapes its AI policy.

Anne Twomey, a constitutional law professor at the University of Sydney, states that granting AI companies permission to scrape copyrighted material could potentially amount to an acquisition of property by the government. She notes that the issue is complex and depends on how lawmakers draft it, but the risk of a constitutional challenge remains. Twomey emphasizes that the outcome depends on the specific wording of the legislation.

Twomey also points out that the High Court has recognized exceptions to Section 51 in certain circumstances, but any new right granted to AI companies could still trigger constitutional issues. She highlights past rulings involving copyright and property acquisition, including disputes over video games, cigarette plain packaging, and cassette tapes, which have produced varied outcomes.

The debate over AI copyright changes in Australia mirrors legal concerns raised in The Castle (1997), where property acquisition on just terms was a central issue. This reference draws a parallel between the film’s themes and the current constitutional debate over AI and intellectual property rights.

The Australian Recording Industry Association warns that any proposal allowing AI companies to scrape data is an acquisition of property and could lead to a constitutional challenge. Annabelle Herd, the association’s chief executive, argues that compensation for such an acquisition would be inadequate and that the government is trading away rights holders’ property. She maintains that the proposed changes could undermine the legal framework that protects creative works.

Chris Maund, CEO of Mushroom Records, contends that current copyright laws function effectively and suggests AI companies adopt licensing models like those used by Spotify. He warns that weakening copyright laws could have international ramifications, affecting global rights holders. Maund further argues that altering Australian law could enable AI firms to train on international data while circumventing copyright protections outside the country.

Ross Cadell, a Nationals senator, warns that Australia could face liability for just terms compensation claims from rights holders worldwide if the government permits AI companies to scrape copyrighted material. He argues that the proposed changes could trigger the largest compensation rights case in history. Cadell has also stated that the Coalition will review whether the government’s proposed AI legislation complies with constitutional property rights rules. Cadell has also cautioned that weakening copyright protections could cause irreversible harm to creators, emphasizing the need to protect existing rights.

Michaelia Cash, the shadow attorney general, states that the government should not sell out Australian creators and rights holders in its rush to attract AI investment. She emphasizes the need to protect property rights and ensure fair compensation for creators. Cash’s comments reflect broader concern within the opposition about the balance between innovation and protecting intellectual property.

Prime Minister Anthony Albanese has promised the strongest possible protection for creatives, warning that using their work without payment would be theft. Despite this promise, creative industries express alarm that AI companies are pushing for weakened copyright laws to train on Australian material. The gap between the prime minister’s pledge and the proposed reforms has become a point of contention.

Albanese and Deputy Prime Minister Tony Burke have supported the Australian music industry through initiatives like Creative Music Australia, which has benefited companies and artists financially. Industry leaders such as Chris Maund express frustration, stating that the government appears out of step with artists and copyright owners on AI-related copyright reforms. This tension highlights the challenge of aligning innovation policy with creator protections.

The attorney general’s department officials acknowledged constitutional concerns about AI copyright changes during a committee hearing with Ross Cadell on Oct. 27, 2026. The department has not yet released a legislative proposal but is aware of potential constitutional issues. Officials did not directly address questions about international liability or compensation claims for foreign rights holders during the hearing.

Department spokesperson Michelle Rowland has pledged that any future copyright changes will deliver meaningful control and fair compensation for creatives. She emphasizes the government’s commitment to supporting creatives amid ongoing debates. Rowland’s statement aims to reassure rights holders that the legislative process will consider their interests. She underscores that the government intends to balance innovation with fair compensation.

Some AI companies, including Anthropic, have rejected existing copyright licensing agreements, proposing an opt-out model instead. This model would allow scraping of content unless rights holders deploy digital protections to signal objection. Rights holders have criticized the proposal, arguing it could lead to widespread unauthorized use of copyrighted material unless they actively intervene, raising constitutional and ethical concerns.

International creative industries are closely monitoring Australia’s potential copyright law changes, fearing they could set a precedent for weakening protections globally. The concern is that if Australia allows AI companies to train on copyrighted material without fair compensation, other countries might follow suit, undermining international copyright standards. The fear is that Australia’s changes could set a precedent for other countries to follow.

International rights holder groups have urged the Australian Labor government not to weaken copyright laws to accommodate AI companies, according to submissions provided to the Joint Select Committee. These groups argue that prioritizing AI investment over creator protections could have serious consequences for the global creative economy. Their submissions add pressure on the government to maintain robust intellectual property safeguards.

The Australian government is considering copyright reforms as part of a broader AI-related policy agenda that includes datacenters, online safety, workforce, energy, and the economy. This comprehensive approach aims to balance AI innovation with ethical and legal considerations.

Meanwhile, the Australian Signals Directorate has warned about the growing use of AI in cyber threats, including autonomous hacks and the exploitation of vulnerabilities. The agency has also noted that AI models like Anthropic’s Mythos have been described as too dangerous to release publicly due to their ability to find cybersecurity weaknesses. These warnings highlight the dual nature of AI as both an innovative tool and a potential risk to security.

The stakes of the debate include potential constitutional challenges and massive compensation claims from rights holders if the government proceeds with changes that allow scraping without fair compensation. The government continues to weigh AI innovation against its obligation to protect creators’ rights.