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,
"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.”
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 full text of the proposed legislation is available on the last page of the Main Text.