Orphan Works Bill Introduced

When the rightsholder for a potentially copyrighted work cannot be identified and located, any use of it that would require a license creates significant legal risk. Such works are called “orphan works.” Effectively, they are frozen in a legal form of suspended animation until enough time elapses that they finally fall into the public domain.

This problem has been one of the few areas in copyright law where statutory reform seemed possible. Now legislation has been introduced in the House of Representatives and is slated for subcommittee mark-up next week. The bill is based on the report and recommendations released earlier this year by the Copyright Office, but actually improves upon that proposal somewhat (see summaries by Subcommittee Chairman Lamar Smith, the bill’s sponsor, and by Public Knowledge). In general, the legislation limits damages and injunctive relief in an infringement action against a content user who performed an unsuccessful “reasonably diligent search” to find a rightsholder.

How to account for this good news? Well, large rightsholders with vigilant management of their intellectual property portfolios typically don’t let their copyrights sink into orphanhood. And they want the right to use orphan works in their own content. So there is little organized opposition to this particular liberalizing amendment to copyright law. Unlike some other all-party negotiations over copyright law, I understand these talks were fairly harmonious. Hopefully, the bill will move through Congress before the end of the session.

3 Responses to “Orphan Works Bill Introduced”

  1. Numly supports orphan works.

    Digital works can be uploaded to Numly along with meta data about the author and copyright in return for a Numly Number. A digital fingerprint of the digital asset is created and stored in the Numly databases. If you find an image online (or any other digital document), you can determine if it has been registered at Numly and who the author/artist is via the Numly Document Validator in the Numly portal. By simply uploading the digital asset in question, Numly will return the associated Numly Number of the work along with all of the copyright meta data and a contact link. The contact link uses Numly’s Secure Message Center to forward your message to the copyright holder (even if their email address has changed).

    This new feature should make finding the copyright holders of orphaned works possible! Let us know what you think!

  2. [...] The bill includes some pretty good things, such as a version of the orphan works bill I have discussed previously. But it also includes questionable measures, particularly an attempt to revise Section 115 to accommodate licensing of online music — an important goal but one executed poorly here. [...]

  3. [...] Given the incredible list of pressing legislative business that is now stalled (including appropriations bills and major issues like immigration and military tribunals), and the very short amount of time left before recess (most likely a single-digit number of voting days), it seems next to impossible that any copyright bill could get far before Congress adjourns for the elections. I think that’s good news because, completely independent of the substance of this grab-bag bill, there just has not been enough analysis and debate of its provisions. The bad part is that a pretty good orphan works remedy — which was the subject of a thoughtful deliberative process — has become bogged down in the larger legislation. Sigh. Maybe next year. [...]