Why I Care About the Orphan Works Bill

Several years ago, would-be re-users of copyright-protected material launched an assault on existing US copyright law to address the perceived problem of “orphan works.” Well, now they’re trying to make protecting your copyright more difficult.

In April 2008, two bills were introduced in Congress – California Rep Howard Berman’s “Orphan Works Bill of 2008” (H.R. 5889) and Vermont Sen Patrick Leahy’s “Shawn Bentley Orphan Works Act of 2008” (S.2913). Both bills sought to change existing copyright law under the same, somewhat ominous, full title “To provide a limitation on judicial remedies in copyright infringement cases involving orphan works.”

Marybeth Peters, Register of Copyrights, posted her statement on The Importance of Orphan Works Legislation in which she states “the legislation would allow good-faith users of copyrighted content to move forward in cases where they wish to license a use but cannot locate the copyright owner after a diligent search.”

Back in 2006, the Copyright Office published their Report on Orphan Works, which defined an orphan work as one whose copyright owner “cannot be identified and located by someone who wishes to make use of the work in a manner that requires permission of the copyright owner.” This allegedly leads to a situation wherein “a productive and beneficial use of the work is forestalled” because the would-be re-user can’t find the actual owner.

In her testimony before the House Subcommittee on Courts, the Internet, and Intellectual Property, Ms Peters complained that recent changes to the our copyright laws effectively prohibited “formalities that interfere with the exercise or enjoyment of copyright protection.” These recent changes included increasing the length of copyright protection as well as others required to conform to international law under the Berne Convention.

Publishers often run into “orphan works” when they can’t locate the legal copyright owner of the perfect photograph or artwork for a book. And it is true that the Internet has increased the “orphan work” problem, making it easy – even common practice – to post photos and artwork without attribution. Likewise, a large volume of written material has been posted and reposted on the Internet without attribution. Even if the work originally included proper attribution, subsequent postings often drop the attribution, either intentionally or through ignorance or carelessness.

Current copyright law requires that anyone wanting to re-use an in-copyright work first acquire permission for its use. Otherwise, the law allows the copyright owner to “recover the actual damages suffered by him or her as a result of the infringement, and any profits of the infringer that are attributable to the infringement and are not taken into account in computing the actual damages.” Potential statutory damages could be up to $150,000 plus, in certain circumstances, up to three times the usual license fee for the use of the material and even the copyright owner’s recovery costs and attorney’s fees.

The new “Orphan Works” legislation alters this system and, worse, limits the potential damages and costs associated with proven copyright infringement unless the copyright owner can demonstrate that the infringer did not act in good faith.

A key feature of the Orphan Works Bill requires a potential copyright infringer to perform and document a “a qualifying search, in good faith, to locate and identify the owner of the infringed copyright” to demonstrate that he was “unable to locate and identify an owner of the infringed copyright.” The potential infringer must then include a, not-yet-defined, “orphan work” identifier and/or symbol on each use of the material.

The bill requires the US Copyright Office to work with stakeholders to define “best practices” and maintain a set of defined standards for what constitutes a good faith, qualifying search – most likely a different set of standards for each type of work (photographs, artwork, recordings, written works, etc.). The bill, however, levies no requirements as to what those practices and standards must include or who will be the final arbiter of them.

Each copyright owner would have to police the system to find potential infringements of his work. They must do that today, but current legal remedies and potential monetary damages cause most “innocent” infringers to try hard to find copyright owners.

Once the copyright owner finds an infringement, they must notify the infringer, who then must respond, investigate and negotiate. If the infringer meets those conditions, the owner would be limited to “reasonable compensation” (defined as “the amount on which a willing buyer and willing seller in the positions of the infringer and the owner of the infringed copyright would have agreed with respect to the infringing use of the work immediately before the infringement began”). So, you and the infringer have to agree on what “reasonable compensation” means for your case.

Example

Smith can’t find the copyright owner of a poem and uses it on a cheap postcard. Later, Jones (the poem’s copyright owner) finds out and notifies Smith. Jones’s “reasonable compensation” would likely be limited to a small percentage of total net sales. Of course, Jones could sue and challenge either Smith’s search diligence or his offer of “reasonable compensation.”

Two final points–the bill as currently written:

1. Would prevent Jones from stopping use of his work after the fact provided Smith made a qualifying search, offered reasonable compensation and added appropriate attribution; and
2. States that an infringing use of a derivative work “shall not limit or affect the copyright protection for a work that uses the infringed work.”

In other words: even after Jones notifies Smith of the infringement, if Smith meets the conditions in (1), Jones cannot stop him from continuing to use a derivative work!

Are any possible infringers paying attention? It appears they are. According to the Advertising Photographers of America, “Within two weeks of the issuance of the Orphan Works Report, nearly all of the domain names associated with orphan works were registered by commercial interests.”

Where does the Orphan Works Bill stand today? On September 27, 2008, the Senate referred a “manager’s amendment” to the House Committee on the Judiciary for further action where it remained until adjournment. All parties fully expect it to be resurrected in the 111th.

If we’re lucky (?), maybe the current economic shenanigans in Washington will delay any further action on this ill-considered legislation.

As an author and publisher, I firmly oppose this legislation as currently written. It represents too sweeping a change to existing US copyright law and too severely limits copyright owners’ rights to compensation for infringement. I have written my senators and congressman to let them know where I stand.

So, what do you think about it? Better yet, what are you going to do about it?