Senate Passes Leahy-Sponsored Orphan Works Bill

 

WASHINGTON (Saturday, September 27, 2008) – The Senate Friday night unanimously passed bipartisan legislation to encourage the use of “orphan works,” works that may be protected by copyright but whose owners cannot be identified or located.  The legislation was introduced by Sens. Patrick Leahy (D-Vt.) and Orrin Hatch (R-Utah), and the Senate Judiciary Committee unanimously reported the legislation in May.  A Republican objection had stalled the Senate’s consideration of the bill.

 

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. 

 

“Some of our most treasured personal and national artifacts are being left unused and unseen because information about their copyright ownership is unknown,” said Leahy.  “It is important to recognize that this bill does not dramatically alter the structure of current copyright law.  If users do not follow the procedures set out in the bill, they are in the same place they are now – facing full statutory damages.   This bill does not create a license to infringe.  I hope the House of Representatives can consider this bill before time runs out in this Congress.”

 

“Countless artistic creations - books, photos, paintings and music - around the country are effectively locked away in a proverbial attic and unavailable for the general public to enjoy because the owner of  the copyright for the work is unknown,” said Hatch. “Unfortunately, it often isn’t easy to identify or find these owners of copyrighted work.

To make matters worse, many are discouraged or reluctant to use these works out of fear of being sued should the owner eventually step forward.”

 

The Leahy-Hatch bill has the support of the Register of Copyrights, the Software and Information Industry Association, the Association of American Publishers, Public Knowledge, and the College Art Association.   

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Statement of Senator Patrick Leahy

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

September 26, 2008

 

Mr. President, in January 2005, Senator Hatch and I wrote to the Register of Copyrights out of a concern that the length of copyright terms was having an unintended consequence of creating a class of “orphan works” – works that may be protected by copyright, but whose owners cannot be identified or located.  Creative works are collecting dust because those who would like to bring them to light are respectful of the copyright laws and will not use those works if they cannot locate the owners.  This unfortunate situation is keeping creative and cultural works from the public, and does not advance the purpose of the copyright laws.

 

Today, the Senate completes work on legislation I introduced along with Senator Hatch to remedy this situation.  The Shawn Bentley Orphan Works Act of 2008 is designed to enable use of works whose copyright status and ownership is uncertain without the user facing prohibitive statutory damages.

 

The Act does not dramatically restructure current copyright law – it does not impose new registration requirements, nor does it provide for a transfer of copyright ownership or rights.  The bill simply provides for a limitation on remedies in discrete, limited circumstances in which, among other things, the owner of the work is not locatable.  Any infringer who wishes to use an orphan works limitation on remedies must perform a diligent search in good faith, document that search, and, in the event that the owner emerges, negotiate with the copyright owner in good faith regarding reasonable compensation.  If any of these conditions, or others set forth in the bill, is not met, the limitation on remedies is unavailable and an infringer faces the full statutory damages as well as costs and attorney’s fees.

 

At its core, the bill seeks to unite users and copyright owners, and to ensure that copyright owners are compensated for the use of their works.  It does not create any orphans, and it does not create a license to infringe.  By providing an incentive to search, in the form of a limitation on remedies, more users will find more owners; more works otherwise hidden will be used; and more copyright owners will receive compensation. The Shawn Bentley Orphan Works Act will thus allow the public to enjoy works that are currently left unseen and unused.  I hope the House can take up this measure, and send it to the President for signature.

 

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S.2913:  Fact v. Fiction

 

S.2913, the Shawn Bentley Orphan Works Act of 2008, enables use of orphan works – works that may be protected by copyright, but whose owners cannot be identified or located – under certain, limited circumstances.  A user who conducts a good faith, diligent, but ultimately unsuccessful search for a copyright owner, will be liable to the copyright owner, if the owner later emerges, only for reasonable compensation for the infringement, not for full statutory damages.  

 

·        The Shawn Bentley Orphan Works Act does not dramatically restructure copyright law – it simply provides for a limitation on damages in discrete, limited circumstances in which, among other things, the owner is not locatable.
 

·        The Act does not abrogate the current rights system in copyright law. 

·        Infringers must be able to prove that they adhered to all of the provisions in the Act to qualify for a limitation on remedies. 

·        If infringers use orphan works, they do not become owners of the orphan work; rather, they are still liable for having committed copyright infringement. 

·        The Act does not provide for a transfer of copyright ownership or rights. 

·        The Act does not permit use.  A user who qualifies for a limitation on damages is still an infringer.  Infringers, if they acted according to the statute, may qualify for a limitation on damages, rather than full statutory damages.

·        The Act does not require artists to register their works; it merely provides extra protection for pictorial, graphic, and sculptural works, by requiring the Register of Copyrights to certify that there exist databases of visual art that have the capability to search images both by text and by image. 

·        Orphan works, by their nature, do not provide information necessary to determine when they were created or whether they were published.  Accordingly, any such qualification would undermine the purpose and scope of the bill. 

 

The Shawn Bentley Orphan Works Act does not create orphans out of copyrighted works.  Nor does it give users a free license to infringe copyrighted works.  It embodies the basic premise of copyright law:  If you use someone else’s copyrighted work, you must compensate the owner for it.

 

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