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Archived updates for Thursday, February 02, 2006

USCO Proposes Orphan Works Legislation

Thanks to the IP Central Weblog for pointing out that the Copyright Office submitted its Report on Orphan Works -- copyrighted works whose owners may be impossible to identify and locate -- to the Senate Judiciary Committee on January 31, 2006. The Report is available for download in two versions, the Full Report with Appendices, and the Main Text without Appendices.

The Report reccommends that the orphan works issue be addressed by an amendment to the
Copyright Act’s remedies section where, if the user has performed a reasonably diligent search for the copyright owner but is unable to locate that owner, then there are limited remedies that a copyright owner could obtain if they show up at a later date and sue for infringement. According to the Report,

If a user meets his burden of demonstrating that he performed a reasonably
diligent search and provided reasonable attribution to the author and copyright owner, then the recommended amendment would limit the remedies available in that infringement action in two primary ways: first, it would limit monetary relief to only reasonable compensation for the use, with an elimination of any monetary relief where the use was noncommercial and the user ceases the infringement expeditiously upon notice. Second, the proposal would limit the ability of the copyright owner to obtain full injunctive relief in cases where the user has transformed the orphan work into a derivative work like a motion picture or book, preserving the user’s ability to continue to exploit that derivative work. In all other cases, the court would be instructed to minimize the harm to the user that an injunction might impose, to protect the user’s interests in relying on the orphan works provision in making use of the work.

The limitations on remedies should give the user more certainty that his efforts
to make the work available to the public will not result in significant monetary damage or an injunction that would disrupt the efforts the user has made in reliance on the orphan works designation. At the same time, the owner should in most cases be able to recover compensation for the use of his work, prevent new uses of the work by the user, and, where possible, receive attribution for his work.

"The current process for dealing with orphan works inhibits the creation of new uses of these works,” said Congressman Smith who requested the report. “This report will shed light on the problem and potential answers.”

The full text of the proposed legislation is available on the last page of the Main Text.
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Anonymous ghegland said...



First the good news: The Copyright Modernization Act (aka Orphan Works Act) appears to be dead for this year. For the third time in as many weeks the bill failed to make it out of mark-up today, and in two days Congress adjourns for this session.

Now the bad news: Lamar Smith seems committed to this awful bill and has promised to bring it back next year.

And a caveat: Congress returns after elections for a "lame-duck" session, so the bill could still be attached to some other unrelated bill and passed into law without discussion. Don't breathe too easily until this Congress is adjourned for good.

Although there's little reason to break out the champagne over this development, the illustration community should take great satisfaction from the knowledge that your unprecedented efforts have brought sufficient scrutiny to this bill to have stalled it so far. Remember that in March, the bill's sponsors warned us that it would be law by now and that any group that opposed it would be "ignored" and "left behind." It hasn't worked out that way.

Because of your efforts – and those of our allies, the photographers, textile designers, greeting card manufacturers and others – Orphan Works legislation has now been exposed as a Trojan Horse for those who want to see a radical change in copyright law. We need to stay vigilant and we must expect that when the bill comes back (in whatever form) its sponsors will be prepared for principled opposition. They'll plan their strategy accordingly, and we should be ready to renew our campaign all over again.

In the meantime, thanks to all of you for a united effort – you did a fantastic job. We'll pass along more information when we learn more.

— Brad Holland and Cynthia Turner,
for the Board of the Illustrators' Partnership

Please post or forward this email in its entirety to any interested party.

October 05, 2006 5:38 AM  

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