“Orphan Works” in Copyright Law Page: 2 of 18
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"Orphan Works" in Copyright Law
This report surveys the findings and conclusions in the U.S. Copyright Office's
Report on Orphan Works ("Report"), issued in January 2006, and legislation
introduced to address the problem. Orphan works are copyrighted works whose
owners are difficult or impossible to identify and/or locate. 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.
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.
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 has been 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 have several provisions that resemble the
Orphan Works Act of 2006, although there are substantial differences from that
earlier legislation and even between the two current bills, including the House bill's
requirement of a "Notice of Use" database, which does not appear in the Senate bill.
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
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“Orphan Works” in Copyright Law, report, May 16, 2008; Washington D.C.. (digital.library.unt.edu/ark:/67531/metadc817524/m1/2/: accessed January 23, 2019), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.