Thank you for sharing your concerns regarding H.R. 5889, the Orphan Works Act of 2008. I appreciate knowing your thoughts on this important issue.
In January 2006, the U.S. Copyright Office issued their Report on Orphan Works. Orphan works are copyrighted works whose owners are difficult or impossible to identify and/or locate. The goal of the report was to elicit public comment and evaluate the extent of real or perceived problems that content users encounter in their efforts to use these works. Orphan works are perceived to be inaccessible because of the risk of infringement liability that a user might incur if and when a copyright owner subsequently appears. Consequently, many works that are, in fact, abandoned by owners are withheld from public view and circulation because of uncertainty about the owner and the risk of liability.
In response to the report's findings and conclusions, legislation was introduced to address the problem. Rep. Howard Berman [D-CA] introduced the Orphan Works Act on April 24, 2008. The bill would limit the remedies in a civil action brought for infringement of copyright in an orphan work if the infringer proves that: (1) the infringer performed and documented a reasonably diligent search in good faith to locate the copyright owner before using the work, but was unable to locate the owner; (2) a "Notice of Use" was filed with the Register of Copyrights before the work was used; and (3) the infringing use of the work provided attribution to the author and owner of the copyright, if known. H.R. 5889 would also permit an award of reasonable compensation for the use of the infringed work, except if: (1) the infringement is performed without any commercial advantage and for primarily a charitable, religious, scholarly, or educational purpose; and (2) the infringer ceases the infringement expeditiously after receiving notice of the claim for infringement.
The bill would additionally direct the Register of Copyrights to: (1) undertake a certification process for the establishment of an electronic database to facilitate the search for pictorial, graphic, and sculptural works that are subject to copyright protection; and (2) study and report to Congress on remedies for copyright infringement claims by an individual copyright owner or a related group of copyright owners seeking small amounts of monetary relief. H.R. 5889 would direct the Comptroller General to study and report to Congress on the function of the deposit requirement in the copyright registration system.
The Orphan Works Act was considered by the House Judiciary Subcommittee on Courts, the Internet, and Intellectual Property on May 7, 2008. After approving a manager's amendment, the bill was approved by voice vote. The manager's amendment would require a court, before granting injunctive relief, to consider a user's interest in the copyrighted work. It also includes a "best practices" provision for the Copyright Office to create guidance on what constitutes a "qualified search" for such a work.
H.R. 5889 now awaits consideration by the full House Judiciary Committee. Please rest assured I will keep your views in mind if the full House considers H.R. 5889 or similar legislation in the 110th Congress. Thank you again for contacting me. I hope you will continue to keep in touch and please feel free to let me know whenever I may be of assistance.
Very truly yours,
Member of Congress