Copyright: Orphan Works

  • Overview
  • Legislative History
  • Additional Information

Overview

Orphan works are works whose copyright holders cannot be identified or found – and are not made publicly available by libraries for fear that rights holders will come forward, initiate legal action, and demand statutory damages of up to $150,000 a work.

Legislative History

Activity during the 112th Congress

It is unclear whether orphan works legislation will be introduced in the 112th Congress. However, the issues surrounding orphan works are likely to receive more attention in the coming months and it is unclear whether legislative activity will develop or would be helpful to the library community in making orphans available to the public.

May 16, 2011

The American Library Association, as part of the Library Copyright Alliance (along with the Association of College & Research Libraries and the Association of Research Libraries), released a statement describing the key features copyright reform proposals should include in order to constitute significant improvement over current law for libraries and their users.  For additional information about the statement, please see the related ALA Washington Office District Dispatch blog post.

Activity during the 111th Congress

No legislative activity occurred.

Activity during the 110th Congress

Both the U.S. Senate and U.S. House of Representatives introduced orphan works legislation during the 110th Congress. Senator Patrick Leahy (D-VT) introduced the Shawn Bentley Orphan Works Act of 2008 (S. 2913). The bill was passed in the Senate and referred to the House Committee on the Judiciary.

In the House, Rep. Howard Berman (D-CA) introduced the Orphan Works Act of 2008 (H.R. 5889). As no additional activity occurred the House bill died at the conclusion of the 110th Congress.

Activity during the 109th Congress

Originally introduced as The Orphan Works Act of 2006 (H.R. 5439) by Rep. Lamar Smith (R-TX) in May 2006, the bill was folded into the Copyright Modernization Act of 2006 (H.R. 6052).

Additional Information

Related to the discussion about potential orphan works legislation is the proposed Google Book Search settlement (The Author’s Guild et al. v. Google, Inc). Judge Chin’s recent ruling for the U.S. District Court Southern District of New York rejecting the settlement among the parties (Google Inc., The Author’s Guild and the Association of American Publishers) has created more questions for the future of mass digitization projects and the fate of orphan works.

At the recent Association of College and Research Libraries (ACRL) National 2011 Conference, Corey Williams, a lobbyist and associate director of the ALA’s Washington office, led an informal roundtable discussion on the impact of the judge’s decision (pending the parties next steps) and the potential for renewed interest in pursuing legislation on orphans works. Discussion among ACRL members reflected a strong interest in librarians developing their own set of best practices for digitizing and making orphan works available. In addition, concerns were expressed that relying solely on a fix from Congress with regard to orphan works may result in legislation language that would be unduly burdensome, and therefore, not useful to the library community.

Additional information about the case is available at http://wo.ala.org/gbs/ – including “ A Guide for the Perplexed Part IV: The Rejection of the Google Books Settlement” – the analysis of the latest decision in the Google Books Search case and its potential effect on libraries by Jonathan Band for the Library Copyright Alliance (comprised of the ALA, ACRL and the Association of Research Libraries) and their members.