Orphan Works


Last Update:  March 28, 2007


What Are “Orphan Works”?

Orphan works are those copyrighted works whose owners are difficult or even impossible to find. The U.S. Copyright Office issued a Notice of Inquiry on January 26, 2005 soliciting advice on the problem of orphan works. The Copyright Office explains:

"Concerns have been raised that the uncertainty surrounding ownership of such works might needlessly discourage subsequent creators and users from incorporating such works in new creative efforts, or from making such works available to the public."

The Office solicited written comments from all interested parties. The Office asked specifically whether there are compelling concerns raised by orphan works that merit a legislative, regulatory or other solution, and if so, what type of solution could effectively address these concerns without conflicting with the legitimate interests of authors and right holders.

Many organizations have taken advantage of this important opportunity to address the problem of using works still protected under the ever-lengthening copyright terms (thanks to the Berne Convention Implementation Act of 1988 and the Sonny Bono Copyright Term Extension Act of 1998), but whose owners cannot be identified. Over 700 initial comments were filed in March; nearly 150 reply comments were filed in May.

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What's Happening


March 28, 2007

The House of Representatives considered legislation in the 109th Congress that would have amended the Copyright Act to allow use of copyrighted works whose owners are difficult or even impossible to find. The thrust of the bill, which libraries supported, was that remedies for infringement of a copyrighted work would be limited if the user (the alleged infringer) had made a reasonably diligent, good faith search to locate the owner of the work but was unable to find the owner.

The House of Representatives’ Orphan Works bill did not make it to a floor vote. We expect, however, that “orphan works” bills will be introduced in both houses of Congress early in the 110th Congress. 

Libraries are letting their representatives in the House and Senate that we support this reform effort. The Library Copyright Alliance has issued the following statement in this regard.


September 27, 2006

The “Orphan Works Act of 2006,” H.R. 5439, was introduced in May, as a result of efforts by libraries, publishers, the U.S. Copyright Office and other groups to amend the copyright law to deal with works whose owners are difficult or even impossible to find. The thrust of the bill is that remedies for infringement of a copyrighted work will be limited if the user (the alleged infringer) had made a reasonably diligent, good faith search to locate the owner of the work but was unable to find the owner.

The bill was marked up by the House Judiciary Committee’s Subcommittee on Courts, the Internet, and Intellectual Property subcommittee in May and referred to the House Judiciary Committee. Even though libraries have concerns with some aspects of the bill, we supported it because we believed that, if enacted, H.R. 5439 would substantially alleviate the orphan works problem, particularly for libraries.

In a disappointing move in late summer, the orphan works bill was combined with two other bills dealing with online music licensing and “enhanced” criminal copyright enforcement to form the larger and more complicated “Copyright Modernization Act of 2006,” H.R. 6052. Withdrawn three times from scheduled markup by the House Judiciary Committee (most recently on September 27), the bill will not move forward in the current congressional session. There is no companion Senate bill. Libraries will work on the reintroduction of an orphan works bill in the new Congress next year.


August 1, 2006

House Marks Up H.R. 5439, the “Orphan Works Act of 2006

 

On May 22, Rep. Lamar Smith (R-TX), chair of the House Judiciary Committee’s Subcommittee on Courts, the Internet, and Intellectual Property, introduced H.R. 5439, the “Orphan Works Act of 2006.”    The bill was marked up by the subcommittee on May 24 and referred to the House Judiciary Committee.  The thrust of the bill is that remedies for infringement of a copyrighted work will be limited if the user (the alleged infringer) had made a reasonably diligent, good faith search to locate the owner of the work but was unable to find the owner. 

 

Under the provisions of H.R. 5439, such a user would be liable for sharply reduced remedies if the owner subsequently reappears and objects to the use.    A library that stops the use would be liable for no damages whatsoever, and if it continues the use it would only have to pay “reasonable compensation,” not actual or statutory damages.   H.R. 5439 would apply to domestic and foreign, and published and unpublished works, regardless of their age.

 

Even though libraries have concerns with some aspects of the bill, we support it because we believe that, if enacted, H.R. 5439 would substantially alleviate the orphan works problem, particularly for libraries.   We had hoped that the full House Judiciary Committee would mark up H.R. 5439 and send it to the House floor for a vote this summer.   It is unclear whether the House will have an opportunity to act on the bill in the remaining days of the session; there is not yet a companion bill in the Senate. 

 


April 7, 2006

Senate Holds Hearing on Orphan Works

The U.S. Copyright Office submitted its Report on Orphan Works to the Senate Judiciary Committee on January 31, 2006, along with recommended legislative changes. The House Judiciary Committee’s Subcommittee on Courts, the Internet, and Intellectual Property moved quickly to hold a hearing on the issue on March 8, and the Senate Judiciary Committee followed with a hearing on April 6.

The seven witnesses before the Senate included Maria Pallante-Hyun of the Solomon R. Guggenheim Foundation (Guggenheim Museum), who presented testimony on behalf of museums, archives and libraries (including ALA). The statements of Senators Hatch and Leahy and the witnesses are available on the Committee’s web site.

There is not yet an “orphan works” bill in either house, but we expect to see bills introduced shortly. The starting point for legislative language will likely be something along the lines of the Copyright Office’s recommendations (see below). Those recommended changes to the law, to facilitate the “productive and beneficial use” of orphan works, are fairly close to what the library community proposed:  limiting remedies for infringement for a user who performed a "good faith, reasonably diligent search" to locate the owner of a work, but did not succeed.


March 22, 2006

House of Representatives Holds Hearing

The U.S. Copyright Office submitted its Report on Orphan Works to the Senate Judiciary Committee on January 31, 2006, along with recommended legislative changes (see below). The House Judiciary Committee’s Subcommittee on Courts, the Internet, and Intellectual Property moved quickly to hold a hearing on the issue on Wednesday, March 8.

The four witnesses included Maria Pallante of the Solomon R. Guggenheim Foundation (Guggenheim Museum), who presented testimony on behalf of museums, archives, and libraries (including ALA). All of the witnesses’ statements, as well as a video Webcast are available on the Subcommittee’s web site.

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Comments filed on solving the problem of “orphan works”

The library community filed comments in March and May 2005 with the U.S. Copyright Office in support of a proposal to change copyright law to address issues surrounding orphan works.

The library associations worked with many in the non-profit community including the Glushko-Samuelson Intellectual Property Law Clinic (at American University's Washington College of Law), the College Art Association (CAA), the American Historical Association, cultural institutions, and public interest groups in developing a "legislative fix" to the Copyright Act to address the issues associated with orphan works.

All of the comments, both those filed initially in March and the reply comments filed in May, are available from the Library of Congress Copyright Office.

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Roundtable discussions held in Washington, DC and Berkeley, CA in July and August 2005

The U.S. Copyright Office held public roundtable discussions to obtain additional comments and to give interested parties an opportunity to exchange their views in person. The transcripts of the sessions (two full days in Washington and one full day in Berkeley) are available on the Copyright Office Web site.

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Copyright Office Issues Report

3 Feb
The Copyright Office submitted its Report on Orphan Works to the Senate Judiciary Committee on January 31, 2006. All of the documents relating to the study are available on their Web site.

The Report makes recommendations for changes to the Copyright Act to address this problem and to facilitate the “productive and beneficial use” of orphan works. The recommendations are fairly close to what the library community proposed:  limiting remedies for infringement for a user who performed a "good faith, reasonably diligent search" to locate the owner of a work, but did not succeed.  

For noncommercial uses, there are no damages if the user ceases the infringement expeditiously after the owner reemerges.  For commercial uses, and for noncommercial uses that continue, the users must pay "reasonable compensation." 

Injunctive relief is also available, unless the user is has commenced making a derivative work that contains the user's own expression.  In essence, if the user has made a substantial investment in reliance on the orphan status, the user can continue the use, but must pay reasonable compensation.

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Orphan Works are a copyright issue, where the owner and/or copyright status of a work cannot be determined.