LegiStorm

Summary:

Orphan works are copyrighted works whose owners are difficult or impossible to identify and/or locate. Orphan works are perceived to be inaccessible because of the risk of infringement liability that a user might incur if and when a copyright owner subsequently appears. Consequently, many works that are, in fact, abandoned by owners are withheld from public view and circulation because of uncertainty about the owner and the risk of liability. In 2006, at the request of Congress, the U.S. Copyright Office issued its Report on Orphan Works ("Report"). The goal of the Report was to elicit public comment and evaluate the extent of real or perceived problems that content users encounter in their efforts to use these works. The Report defines the problems it identified, and concludes that the problem is indeed real and should be addressed legislatively. It analyzes stakeholders' views on the issue and constraints on solutions imposed by the structure of U.S. copyright law and international copyright obligations. The Report sets forth a proposal to amend the Copyright Act by adding a provision that would limit liability for infringing use of orphan works when, prior to use, a user performs a reasonably diligent search for the copyright owner and provides attribution to the author and copyright owner, if possible. In some instances, when copyright infringement is made without commercial advantage and the user ceases infringement promptly after receiving notice thereof, no monetary relief would be available. Adopting many of the suggestions of the Copyright Office, the Orphan Works Act of 2006 was introduced in the 109th Congress, second session (H.R. 5439). This bill was later incorporated into an omnibus copyright bill, appearing as Title II of The Copyright Modernization Act of 2006 (H.R. 6052). However, the bill was not addressed by the end of that Congress's adjournment. The bill would have implemented a limitation on monetary damage liability for specified infringement of orphan works, but took a more detailed approach than the Report's original proposals in establishing requirements for such liability limitations, such as articulating standards for a "reasonably diligent search." The bill would also have directed the Copyright Office to study and report on the implementation of the new orphan works amendment, and to study and make recommendations for a "small claims" procedure to address copyright infringement. Legislation addressing the orphan works issue was reintroduced in the 110th Congress: the Orphan Works Act of 2008 (H.R. 5889) and the Shawn Bentley Orphan Works Act of 2008 (S. 2913). The two bills resembled the Orphan Works Act of 2006, although there were substantial differences from that earlier legislation and even between themselves. These additional or revised provisions were added in part to address concerns raised by photographers, illustrators, and other visual artists, as well as textile and home furnishing manufacturers. While S. 2913 passed the Senate, H.R. 5889 did not make it out of the House Judiciary Committee. This report surveys the findings and conclusions in the U.S. Copyright Office's Report on Orphan Works and analyzes the orphan works bills that were considered by the 109th and 110th Congresses. No legislation relating to orphan works has yet been introduced in the 111th Congress as of the date of this report. However, the outcome of the Google Book Search class action lawsuit (and its pending settlement) may potentially affect future orphan works legislation.