On March 13, 2008, House Subcommittee on Courts, the Internet and Intellectual Property held a hearing on the issue of orphan works to collect testimony from the interested parties before introducing new legislation to address the issue. It is expected that the new bill will be similar to the "Orphan Works Act of 2006" which was proposed but never enacted in the last Congress.
Orphan works are copyrighted works whose copyright holders cannot be identified or located. When a particular work becomes orphaned, the uncertainty surrounding its ownership stalls future use of that work by discouraging subsequent creators and users from incorporating the work in new creative efforts, or from making such works available to the public for fear of a copyright violation. Without locating the copyright holder of a work, users cannot obtain a license to use the work, which leaves them with the sole option of using the work in the limited manner permitted by the fair use and first sale doctrines.
"Orphan Works Act of 2006" permitted use of orphaned works, but gave legitimate copyright holders who resurfaced the right to bring an action for "reasonable compensation" against a "qualifying user"—a user who had conducted a good faith, reasonably-diligent search for the copyright owner before commencing use of the work. The Bill defined "reasonable compensation" as the amount "a reasonable willing buyer and a reasonable willing seller in the positions of the owner and user would have agreed to at the time the use commenced." Injunctive relief was limited to cases where users have not added significant new expression.
Under the Bill, a copyright owner would only be able to recover statutory damages against new unauthorized users whose use commenced after the owner resurfaced, or as a result of subsequent uses by the original user. The Bill also included a safe-harbor provision for certain noncommercial uses where the user ceased infringement immediately after receiving a notice of a claim.
Visual artists had argued against the Bill because unlike written content, their works often do not contain copyright information and may be incorrectly perceived as orphans. The Bill, they argued, placed on visual artists the burden to identify their works if they wish to avoid forfeiting their rights. Another argument against the proposed legislation was grounded in perception of the legislation as an incentive to drum up excuses for failing to find the copyright owner. Critics argued that unscrupulous users would exploit the loophole by "attempting" to locate the copyright owner and using the work with the satisfaction of knowing that, if caught, they would only be liable for small "reasonable compensation." (Under current law, copyright owners who have registered their works prior to infringement or within three months of publication may collect substantial statutory damages.)
New Legislation is expected to address concerns of the visual artists and other opponents of the prior Bill. In a recent statement, Marybeth Peters, the Register of Copyrights, has indicated that the new legislation will likely include search criteria incorporating "best practices," as judged by the relevant copyright community, to evaluate when a user has made a "diligent" search for the copyright owner. Thus, a user looking to find the owner of a sound recording would look to the recording industry for guidance. The Copyright Office has also stated that it is aware of several companies developing technology for matching users to owners, which could further ease and clarify the search process.
While it is probable the legislation will receive the support it did during the 109th Congressional session, it is yet to be seen whether the new bill will alleviate the concerns of visual artists, and pass into law.
Vol. 53, June 2010