Orphan Works Act Has Potential to Lessen Copyright Infringement Penalties

With the proliferation of YouTube, file sharing, and teacher lesson plans on Websites, publishers are worried about copyright infringement and how to enforce current laws.

However, the Internet has also opened access to thousands of files where the copyright holder cannot easily be found—in fact, the works may be public domain, but there is no supporting documentation.

Now, there are two bills before Congress to address the issue of “orphan works,” and at least one coalition of organizations feels that the pair of bills will impact artists’ legal options if someone uses their material without permission.

Orphan works, as defined by the U.S. Copyright Office, is a situation in which the owner of a copyrighted work cannot be identified and located by someone who wishes to make use of the work in a manner that requires the owner’s permission.

In 2005, under direction from Senators Orrin Hatch (R-UT) and Patrick Leahy (D-VT), the Register of Copyrights studied the orphan works issue in detail and found that users were afraid to use orphan works for fear of future reprisals.

The current proposed laws stem from the Register’s recommendation that users who perform a documented search with due diligence not be unduly punished if the copyright holder claims ownership at a later date.

Although the first legislation in 2006 failed to move out of committee, both current bills, H.R. 5889 and S. 2913, appear to be moving quickly.

The main opponent of the legislation is the Orphan Works Opposition, a loose coalition of associations mostly related to illustrators, photographers, and other visual artists, who have signed a petition opposing the bill.

They do not appear to oppose the intent of the two laws; the main objection is that they believe the language is too ambiguous, specifically related to the phrase “due diligence” regarding a search, and that the bill would strip away current copyright protections for non-orphan works.

In addition, the group feels that the act puts the burden on the copyright holder to make sure she is easily identified. Finally, they believe that the bill will allow an infringer to create—and copyright—a derivative work even if the copyright holder of the original work objects.

Questions remain, though, as to whether or not this act will have the dramatic effect the coalition predicts. If you have any comments regarding orphan works, the legislation, or online piracy in general, please contact Stacey Pusey, AEP Content Manager, at spusey@AEPweb.org.

Report on Orphan Works: A Report of the Register of Copyrights, January 2006http://www.copyright.gov/orphan/orphan-report.pdf

Orphan Works web pages, Copyright Officehttp://www.copyright.gov/orphan/

Orphan Works Opposition Headquartershttp://owoh.org/

For the legislationhttp://thomas.loc.gov
(Type the phrase “orphan works” into the search box.)

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