Orphan Works Bills Reemerge

Two years after initial attempts at legislation stalled in committee, Congress is facing competing bills that address the problem of orphan works. The Shawn Bentley Orphan Works Act of 2008 (S. 2913) was introduced in the Senate and the Orphan Works Act of 2008 (H.R. 5889) in the House of Representatives. Both seek to address the use of works for which copyright owners cannot be identified or located by limiting a user's exposure to damages should an owner come forward after use has been made, provided the user undertook a “reasonably diligent” search.

The American Library Association's Washington Office “recommended” the Senate version and urged librarians “to communicate the library community's enthusiastic support for orphan works legislation that does not include a 'dark archives' provision.”

The House bill could create significant burdens for both owners and potential users. For example, it would mandate a Notice of Use Archive (aka “dark archive”), to be created and held by an outside private party but certified by the copyright office. This makes the law not only dependent upon users searching this database (and documenting the search) before making use of a work but also upon copyright owners populating the database—and paying fees to do so.

On her blog, the University of Texas's Georgia Harper was less sanguine about the House version, calling it so burdensome that it will do little or nothing to help those seeking to make use of orphan works. “The bill seems intentionally designed to discourage use,” she wrote.

The House version, she noted, also gives copyright industries an astounding edge: the right to “erect barriers” by defining a “best practices” primer that the Copyright Office will post and that “users must follow to get the benefit of using a work that, contrary to rampant fears, no one likely exists who cares about or would object to its use.”