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Saving the Orphan Works

April 27, 2008 - by Donny Shaw

There are a lot of creative works in the world that are protected by a copyright, the holder of which can’t be tracked down. These are known as orphan works, and a pair of bills introduced in Congress last week seek to bring them back into the arena of creative reuse. The bills, H.R. 5889 in the House and S. 2913 in the Senate, would limit the amount of statutory damages that could be awarded should the copyright holder of an infringed orphan work eventually pop up.

The idea behind the bills is simple: if you want to use a work that might be copyrighted, but after a diligent search can’t find the owner, you may use the work without fear of a prohibitively large lawsuit.

What constitutes a diligent search? Here’s how it’s spelled out in the bill:

  • the actions taken in performing that search are reasonable and appropriate under the facts relevant to that search, including whether the infringer took actions based on facts uncovered by the search itself.
  • the infringer employed the applicable best practices maintained by the Register of Copyrights under subparagraph (these “best practices” will be created and made available by the Register of Copyrights upon the bill’s enactment).
  • the infringer performed the search before using the work and at a time that was reasonably proximate to the commencement of the infringement.

And in the off chance that a copyright holder shows up after their work has been improperly infringed as an orphan work, the bills would provide for them to be “reasonably compensated.”

The House version of the bill contains a provision aimed at encouraging more artists and other creators to register their copyrighted works. A work does not have to be registered in order for it to be officially copyrighted. It’s a formality; the copyright exists regardless of it being registered with the copyright office. The House bill would encourage more people to pay to register their copyrights by allowing the courts to place a higher value on registered works when determining reasonable compensation. This bit of the bill has some artists concerned that it will free up all their unregistered copyrighted work to be used by others as orphans. Here’s how this was described during an interview between artist Brad Holland and Mark Simon of the Illustrators’ Partnership:

>Holland: Under this orphan works legislation, nothing you do would be protected. Not a single thing – not a sketch, not a finished picture, not a snapshot, not a home video – nothing you do would be protected unless you registered it with a commercial registry. Now these commercial registries don’t even exist. The idea is they’re going to change the law, in a sense orphaning anything you have ever done or that you ever will do unless you register the work with these so far non-existent registries, which they expect the private sector to pop up and supply.
>Simon: So, we have to pay to own our own work?
>Holland: Yes. You would have to pay to own any work that you wanted to protect. Now, of course, if you didn’t mind creating something and letting it sit, and hope that nobody found it and infringed it, as the guy at the copyright office said: “go ahead and be my guest.” But, if you want to protect anything you do for either commercial, or just as a matter of protecting your own privacy – as a matter of protecting your own creative ideas. You know, suppose you do a sketch – suppose you do a job for a client and send them five sketches. They pick one. You have to register the other four too because there’s no telling that the art director might let the sketch sit in a drawer, somebody else could find it, it doesn’t have a name on it, and suddenly it’s their idea, it’s their sketch. They can use it however they want. That would be the premise of this new orphan works legislation. In effect, it would orphan ever work that you’ve ever done, including work that you’ve registered with the copyright office over the last 30 years. If you have already sent a registration to the copyright office and registered your work, under this orphan works bill you’d still have to register it again with a commercial registry.

In a blog post entitled “”">Six Misconceptions About Orphaned Works," Meredith L. Patterson counters some of the claims coming form concerned artists (particularly those voiced in an article by the above interviewer, Mark Simon). Responding to Simon’s statement that, if someone doesn’t pay to register their copyright, “anyone in the entire world will be able to use it for free,” Patterson says:

>Perhaps he’s envisioning a scenario where a user spends five minutes googling, comes up with nothing, calls that a “good faith” search and forges ahead with an infringing use. That’s not going to fly before the court; the user will have to detail how he conducted the search, and if the copyright owner can demonstrate that no, actually, it is quite easy to find the work’s original owner, the “good faith” provision doesn’t apply. And even if the “good faith” provision does apply, the Copyright Office recommends that the user should still have to compensate the owner for a reasonable amount.
>The basics are, well, pretty basic. An orphaned work is a work for which no legitimate rights-holder can be found. If the legitimate rights-holder resurfaces, it is not an orphaned work any more. Plain and simple.

This debate seems to be anticipating some future legal precedent that will have to be set by the courts, but it’s the main issue accompanying the introduction of these bills.

More immediately, there are several differences between the House and Senate versions of these bills that will have to be worked out. Plagiarism Today lists them in convenient bullet points.

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