Orphan works legislation

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Orphan works are “copyrighted works whose owners may be impossible to identify and locate.” Because the default response of many is to disregard copyrighted works unless they are definitively in the public domain, orphan works are often not made available to the public due to uncertainty over their ownership. This page details efforts in the U.S. Congress and elsewhere to address the problems associated with orphan works.

110th Congress
As of March 2007, no bills regarding orphan works had been filed during the 110th Congress. Several, however, had been filed in previous Congresses (see past legislation regarding orphan works)

U.S. Copyright Office releases proposal
Beginning in 2005, the U.S. Copyright Office began an examination of the issues surrounding orphan works. The office conducted several informal discussions with groups representing copyright owners and users. The office released a report to Congress detailing the problem and suggesting a possible legislative approach to solve it. The reforms proposed would require users of orphan works to pay “reasonable compensation” to the owners of orphan works, should they appear after a "reasonably diligent search." This remedy would apply to "all works immediately."

Response to proposal
On February 1, 2006, Public Knowledge, a non-profit Washington, D.C.-based lobbying group involved in intellectual property law, competition, and choice in the digital marketplace, commended the U.S. Copyright Office for its report on orphan works, but said one of the key recommendations to Congress still "falls short." Specifically, Public Knowledge President Gigi Sohn said the group disagreed with the recommendation of the report that users of orphan works be required to pay “reasonable compensation” to the owners of orphan works, should they appear after a diligent search. She defended this view by stating, “That approach keeps the orphans in the orphanage.”

Lessig's proposal
In response to the report issued by the Copyright Office, Larry Lessig, a law professor at Stanford University, clarified that “The Copyright Office’s report is brilliant...Its proposal is less brilliant." He considered his option as "a kind of copyright maintenance procedure." It differed from the Copyright Office’s proposal in three critical ways:


 * It would apply only to old works, not to new works. For works after enactment, copyright owners would get a 14-year grace period where they need not worry at all about any orphan work requirement. For work published between 1978 and today, there would be no orphan work requirement until 2021. And for work published before 1978, (in a time when formalities were the norm), there would be no requirement until 2012.


 * It would apply to published “United States works” only, not to foreign works or unpublished work.


 * The requirement it would impose after the 14-year delay is registration. The registration would not be with the Copyright Office, but rather a private registrar approved by the office.

Copyright law in the U.S.
Copyright law in the United States is essentially based on a “form of protection” provided to “original works of authorship,” including literary, dramatic, musical, artistic, and certain other intellectual works. These laws include a doctrine of “fair use,” which was established via the courts and specifies four factors for determining whether a use is fair: 1) the purpose and character of the use, 2) the nature of the copyrighted material, 3) the amount of the work used in proportion to the entire work and 4) the effect of the use on the value of the copyrighted work.

Works which are considered to be in the “public domain” indicate that no person can claim ownership rights or retain proprietary interests over a particular work.

As stated above, orphan works are copyrighted works whose owners cannot be identified. Because many archivists, libraries, film restorers, artists, scholars, educators, publishers, and others simply disregard works unless they are definitively in the public domain, orphan works are often not made available to the public due to uncertainty over their copyright status (despite the fact that no one is claiming ownership of them).

Movement to address problems with orphan works
Beginning in the late 1990s, interested parties and organizations representing copyright owners and users pushed for copyright reform that would address the problems of orphan works. This pressure eventually led to a challenge of the 1998 Sonny Bono Copyright Term Extension Act (H.R. 1621) which extended “protection from life of the author plus fifty years to life of the author plus seventy years.” The measure, signed into law by President Clinton, included “provisions applied to works under copyright on the date of its implementation...An exception permits libraries, archives, and non-profit educational institutions to treat copyrighted works in their last twenty years of protection as if they were in the public domain for non-commercial purposes.” The challenge was defeated in 2003 when the Supreme Court upheld the Bono copyright law as constitutional by a vote of 7-2 in Eldred v. Ashcroft.

Failed case leads to Rep. Lofgren's proposal
Stanford Law professor Larry Lessig, who helped lead the fight against the Bono copyright law, traced the losing court fight to future attempts to address the problems posed by orphan works. Following the case, he made a proposal concerning orphan works which was later included by Rep. Zoe Lofgren (D-Calif.) in the Public Domain Enhancement Act of 2003 (H.R. 2601).

The bill would have (as Lessig originally suggested) “required the Register of Copyrights to charge a fee of $1 for maintaining in force the copyright in any published U.S. work. The bill would have required the fee to be due 50 years after the date of first publication or on December 31, 2006, whichever occurred later, and every ten years thereafter until the end of the copyright term."

The bill was originally introduced on June 25, 2003. It was referred to the House Committee on the Judiciary and then the Subcommittee on Courts, the Internet, and Intellectual Property, which were chaired by Reps. Jim Sensenbrenner (R-Wisc.) and Lamar Smith (R-Texas), respectively. The bill received no hearing or other action.

The bill had 13 cosponsors:

Rep. Lofgren reintroduces bill
Rep. Lofgren reintroduced the bill in the 109th Congress as H.R.2408. The bill was again referred to the same committee and subcommittee under the same chairs and received no action. In the 109th Congress, the bill had just one cosponsor, Rep. John Doolittle (R-Calif.).

Soon after the bill was introduced, however, Sens. Orrin Hatch (R-Utah) and Patrick Leahy (D-Vt.) formally requested that the U.S. Copyright Office conduct a study into the problem of “orphan works.” (see above)

Rep. Lamar Smith's proposal
On May 22, 2006, Rep. Lamar Smith (R-Texas), then ranking member of the House Committee on the Judiciary, introduced the Orphan Works Act of 2006 (H.R. 5439). The bill would “limit the remedies available in a copyright infringement action if the infringer proves that: (1) the infringer performed and documented a reasonably diligent search in good faith to locate the copyright owner before using the work, but was unable to locate the owner; and (2) the infringing use of the work provided attribution to the author and owner of the copyright, if known.”

The bill received no cosponsors, was referred to the House Committee on the Judiciary, and never received a vote on the floor.

On September 12, 2006, Smith introduced the Copyright Modernization Act of 2006, (H.R. 6052) which would “amend title 17, United States Code, to provide for licensing of digital delivery of musical works and to provide for limitation of remedies in cases in which the copyright owner cannot be located, and for other purposes.”

The bill included the orphan works provisions originally introduced in the Orphan Works Act of 2006, and also included other measures regarding intellectual property rights. Like his other bill, Smith's measure attracted no cosponsors, was referred to the House Committee on the Judiciary, and never received a vote on the floor.

Response to Rep. Smith's proposals
Public Knowledge responded positively towards Smith's proposals.

It lauded that fact that Smith’s measures would do the following:


 * Prohibit injunctions when the user of an orphan work “recasts, transforms, adapts or integrates the [orphan] work with the [user’s] original expression in a new work of authorship….” This would ensure that the publication of transformative works that may include the entirety of an orphan work would not be able to be stopped by a court.
 * Require the Copyright Office to make available information that would help users understand what may constitute a reasonably diligent search.
 * Make clear that in determining the “reasonable compensation” an orphan works user would need to pay in the event that an orphan works owner reappeared, the owner would have the burden of establishing the amount that a willing buyer and willing seller would have agreed to.
 * Eliminate a provision that would have required the rules to sunset after 5 years.

Public Knowledge cited two aspects of Smith's bill that it opposed:


 * It failed to include a "cap on damages." Including a cap on "reasonable compensation" would prevent a disproportionate financial liability for the user.


 * It failed to include a "safe harbor" provision. This would have prohibited any payment if a user immediately ceases using the orphan work when an owner reappears. This would ensure that small artists who sell their works would be entitled to the same safe harbor as large museums and libraries.

External resources

 * Public Knowledge President Gigi B. Sohn's response to the U.S. Copyright Office's report on orphan works, February 1, 2006
 * Lawrence Lessig: Copyright Policy - Orphan Works Reform
 * Public Knowledge: Press release announcing the introduction of Rep. Smith's bill (H.R. 5439), 2006
 * Statement of Public Knowledge on orphan works legislation