Orphan Works Bills Introduced

Senate LogoYesterday, both the U.S. House of Representative and the U.S. Senate introduced versions of the orphan works bill. Both the Senate version, S.2913, and the House version, H.R.5889 are very similar in nature and closely mirror the Orphan Works Act of 2006, which failed to pass.

According to attorney Joe Keeley, the two bills are very similar to the 2006 one. Both focus heavily on the performing of a “Reasonably Diligent Search” for the copyright holder, which is now called a “Qualifying Search” in the new legislation, and both bills allow the user to avoid paying statutory damages or attorney fees if they use the work after performing such a search and are unable to locate the copyright holder.

However, the bills are not exact carbon copies of the 2006 leglislation, both offer some differences that need to be looked at and weighed.

Differences in Senate Version

The Senate version of the bill is by far the most similar to the original. It offers only two major changes when compared to its 2006 counterpart.

  • A study of the current copyright registration system, to be completed within two years.
  • A requirement that uses of orphan works be identified with a symbol, to be created by the Copyright Office.

The “meat” of the bill, the limitation of damages if the copyright holder can not be found after a resonable search, remains very much in tact. Though the bill, like its 2006 counterpart, puts a higher burden on commercial use, it does make the works available for such purposes.

Differences in the House Version

The House version of the bill is the more different of the two offering, several differences from both the 2006 legislation and the Senate version. The differences between it and the 2006 version are as follows:

  • A delayed effective date for visual works. Would start either in 2013 or after the databases or after two searchable databases are available to the public for visual works.
  • A study of the current copyright registration system, to be completed within two years.
  • Those seeking to use an orphan work must first file a “Notice of Use” with the Copyright Office.
  • A requirement that uses of orphan works be identified with a symbol, to be created by the Copyright Office.
  • In cases where a copyright comes forward after an orphan work is used and the work was previously registered, courts can take into account the registration and may value the work higher, awarding more money.

It is clear that the House version is designed to placate the fears and worries of visual artists, who were primarily responsible for the failure of the first bill. It delays the effective data for visual works, adds extra burdens on those seeking to use an orphan work and can award greater damages if the work is properly registered with the USCO.

However, as with the house version, the overall effect is still the same. Though visual artists will likely find this bill preferable, I doubt that many will consider it an adequate effort to address the issues raised.

Some General Thoughts

House of Representatives LogoThough I plan to talk more about this bill over the next few weeks, my initial thoughts are that the bill’s chances of passage are slimmer than many think.

Not only does the bill have strong opposition among visual artists, it also has very little support from copyright reformists, such as Professor Lessig, who deal heavily with the orphan works issue. The bill has no real champion among the people and even the RIAA has remained quiet on the issue since filing a comment (PDF) on the proposed legislation back in 2005.

While it is worrisome that they are attempting to “fast track” this bill, the first one died an inglorious death and this one seems likely to follow suit, with campaigns against it already mounted.

But while I do not think the nightmare scenarios that many visual artists are presenting are likely to happen, nor do I think much of the panic is justified, I agree that this legislation does create new headaches for copyright holders without providing much benefit to those that would seek to use orphan works.

Simply put, what this legislation does is provide little more than an affirmative defense against a suit for copyright infringement. Much like with fair use, the person making use of the work would have to prove that their copying was not an infringement. This will, inevitably, lead to a lot of legal gray area that will scare most people off from using orphan works.

It would likely be decades before this law was adequately tested in the courts to provide any certainty to those wanting to take advantage of it. Between then and the passage of the law, should it happen, there would be a long period of turmoil, for both copyright holders and those wanting to use/protect orphan works.

Conclusions

The orphan works problem is very real and it was created by a combination of ever-extending copyright protection periods, a registration system that doesn’t effectively register anything and media that can’t outlast the copyright term.

These issues have to be addressed if we’re going to get a real solution to these problems.

But as bad as this legislation is in many ways, it is actually among the best copyright legislation we’ve seen in the past 20 years. At the very least, we have to give the USCO and our Congress credit for not simply bowing down before big copyright holders and for addressing a real issue, albeit in a very imperfect way.

In short, copyright law is currently so messed up and beyond repair that it may be time to consider a full reboot, one that can actually address these issues and dozens of other problems with the current system.

In the meantime, I sincerely hope that we can do better than this particular orphan works legislation.

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