Orphan works bill could open library collections to the Web

The Senate last week passed a bill that would make it easier for universities, archives and libraries, including the Library of Congress, to digitize and make available online collections that contain 'orphan works.'

These orphans are works that are protected by copyright law, but whose copyright owners cannot be identified or found. Millions of orphan works held in collections are in danger of slipping into obscurity because, without permission from the copyright holder, they cannot be used without legal risk.

S. 2913, the Shawn Bentley Orphan Works Act of 2008, would ensure that owners of such works receive fair compensation for their use, but would limit the financial risk of users who make a good-faith effort to find those owners. The Copyright Office would help to define what constitutes a reasonable search.

The bill is named for a late intellectual property counsel to Sen. Orrin Hatch (R-Utah), cosponsor of the bill along with Sen. Patrick Leahy (D-Vt.).

'Our legislation permits the use of an orphan work only if the potential user performs and documents a good-faith search for the copyright owner,' Leahy said in introducing the act in April. 'If users cannot locate and contact copyright owners, they may use the orphan work. But if copyright owners later make themselves known, and if users have performed a search that qualifies under this legislation, owners are entitled to reasonable compensation.'

The user will not be liable to statutory or punitive damages, however, the threat of which could make it impractical for an organization to use such works. If the user does not perform the required search, it could be liable for statutory damages up to $150,000.

The bill that passed Sept. 26 grew from a 2006 proposal by the Copyright Office in response to a request from Hatch and Leahy to address the growing problem of orphan works'which can include anything from untitled photos, artwork from old magazine ads, out-of-print books, antique postcards and obsolete computer programs. Orphans have always been around, but digital technology has made finding a solution to the problem more pressing because the Internet has increased the exposure of and demand for these works.

The Library of Congress, for instance, has made millions of maps, photos, recordings and other materials available on its Web site. But digitizing and posting copyright material requires the copyright holder's permission, which is not always easy to obtain. If the copyright holder cannot be identified or located, material may not be made available in online collections.

The Orphan Works bill would provide a path to use of these works while attempting to protect the rights of both sides.

'In practical terms, it means that a woman in Vermont can restore a wedding photograph of her grandparents, even if she cannot locate the photographer to get permission to do so,' Leahy said in his introductory remarks to the bill. 'It means that a library can display letters of American soldiers wrote during World War II, even if the library cannot contact the soldiers or their descendants. It means that museums can exhibit Depression-era photographs, even if they cannot determine the name of the photographer.'

To qualify for protection under the bill, a user of an orphan work would have to make and document a reasonable search for the owner, using public records from the Copyright Office and other appropriate sources. The Register of Copyrights would create a body of recommended practices for such a search, and industry best practices for searches also would have to be followed.

If the copyright owner shows up after a work is in use, the user must negotiate in good faith for a reasonable compensation in order to retain the protection of the law. Courts could not order compensation for non-commercial use of such works by non profit educational institutions, museums, libraries, archives and public broadcasters.

The Register of Copyrights also would be required under the bill to certify databases, including commercial databases, that could assist in searches. The register also would be required to study the feasibility of a small claims-type court for copyright violations.

The bill was referred to the House Judiciary Committee.

About the Author

William Jackson is freelance writer and the author of the CyberEye blog.

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