Judiciary Committee Reports Leahy-Hatch Orphan Works Bill

 

WASHINGTON (Thursday, May 15, 2008) – The Senate Judiciary Committee today voted unanimously to report bipartisan legislation to encourage the use of “orphan works,” works that may be protected by copyright but whose owners cannot be identified or located.  Chairman Patrick Leahy (D-Vt.) and Sen. Orrin Hatch (R-Utah) introduced the legislation last month.

 

The Shawn Bentley Orphan Works Act would allow users to display or employ orphaned works after a thorough and documented search failed to reveal a work’s owner. The legislation provides specific search criteria, and the Copyright Office (CRO) is expected to post guidelines for the best practices for finding a copyright owner.  The legislation also provides for court review to determine if an adequate search has been conducted in good faith.  The orphan works bill also provides protections for copyright owners who may later emerge, and provides a path for compensation should any user exhibit bad faith. 

 

“This legislation will help bring orphaned works out of the shadows and into the light for everyone to enjoy,” said Leahy.  “We have worked to strike the right balance to protect the interests of copyright owners and potential users of orphan works.  This bill allows all Americans to enjoy pieces of history, without eliminating necessary and long-established copyright protections.”

 

“It is fitting that this legislation is named in honor of the late Shawn Bentley, a native of St. George, Utah, who worked for the Judiciary Committee for a decade and worked on several landmark pieces involving intellectual property before his death at age 41. I'm sure members of the Bentley family must be justifiably proud and pleased,” said Hatch.

 

“This is a good bill,” Hatch continued.  “There are scores of superb music, literary masterpieces and magnificent photos and art that clump corners, collect dust, fill floors and dot shelves in attics and storage rooms across the nation - items of immense artistic and historic merit that are unavailable to Americans because their owners are unknown and people are leery of making the work publically available for fear of being sued.  This vital legislation provides a mechanism to unlock these orphan works and bring them out in the public domain so Americans can enjoy them once again. It strikes an appropriate balance between protecting against copyright infringement and preserving our national and personal history. I'm pleased the Senate Judiciary Committee has approved this important bill and sent it on to the full Senate.”

 

The Committee-reported bill incorporates provisions to strengthen and streamline the requirements for a qualifying search and clarifies eligibility provisions.  A managers’ amendment adopted by the Committee also excludes certain works on everyday items, such as coffee mugs, shower curtains and fabrics on furniture that are offered for sale or distribution.

 

The Leahy-Hatch bill has the support of the Register of Copyrights, the Motion Picture Association of America, the Software and Information Industry Association, the Association of American Publishers, the Recording Industry Association of America, Public Knowledge, and the College Art Association.  Companion legislation has been introduced in the House of Representatives by House Judiciary Committee members Howard Berman (D-Calif.) and Lamar Smith (R-Texas). 

 

# # # # #

 

Statement of Chairman Patrick Leahy

Committee on the Judiciary

On S. 2913, the Shawn Bentley Orphan Works Act of 2008

Executive Business Meeting

May 15, 2008

 

The Shawn Bentley Orphan Works Act of 2008, S. 2913, is the culmination of the work that began when an intellectual property staff member for Senator Hatch, and one of my own staff members, began talking about the problems with “orphan works” -- potentially copyrighted works whose copyright owners cannot be found.  Because potential users of the works fear paying huge statutory damages awards if the copyright owner emerges, these works have generally remained unused, and so the public is deprived of the benefit of seeing them, and any existing copyright owners are deprived of licensing fees. 

 

In 2005, Senator Hatch and I asked the Copyright Office to conduct a study and propose legislative solutions.  After conducting a series of roundtables, and receiving over 800 comments on the problem of orphan works, the Copyright Office issued a thoughtful, detailed report in January 2006. 

 

Since then, Senator Hatch and I have worked diligently to craft legislation that balances the interests of copyright owners and potential users.  Our bill strikes the right balance:  if users conduct diligent searches in good faith for copyright owners, and cannot locate the owners, they may use the orphan works.  If a copyright owner later appears, the user must pay the owner reasonable compensation and stop using the work.  Importantly, if a user fails to conduct a good faith, diligent search, or fails to negotiate reasonable compensation in good faith, then all the statutory remedies still apply. 

 

We have recently heard some suggestions to improve the bill while staying true to its objectives.  We incorporated many of these thoughts into a managers’ amendment, which strengthens and streamlines the requirements for a qualifying search and clarifies the eligibility provisions.  At Senator Specter’s request, and having heard from other members of the Committee, the managers’ amendment also creates an exemption for works on useful articles.  And, at Senator Feinstein’s request, we have amended the effective date provision and tightened the database certification language. 

 

I am particularly pleased that the Register of Copyrights has expressed her strong support for this legislation and the balance it providers.  I have also received letters of support for S. 2913 from the Motion Picture Association of America, the Software and Information Industry Association, the Association of American Publishers, the Recording Industry Association of America, Public Knowledge, and the College Art Association, among others.  I ask that all of these letters be made part of the record. 

 

I understand that Senator Brownback may offer an amendment related to public performances on Internet radio.  I have a strong interest in this issue, as does Senator Feinstein and others.  It is an important issue, and one on which we can have a full discussion in the larger context of public performance issues. 

 

While I do not believe that the Committee’s debate on this legislation is the appropriate venue for debate on Internet radio, I respect the Senator’s interest in this issue. 

 

I thank Senator Hatch for all his help in developing orphan works legislation, and I am proud to continue our partnership on intellectual property issues with such an important bill.  I hope the Committee will approve this bill today, and we can bring the matter to the full Senate.

 

# # # # #