H.R. 5889, the Orphan Works Act of 2008, was introduced by
House Judiciary Committee Intellectual Property
Subcommittee Chairman Berman of California, full Judiciary
Committee Ranking Member Lamar Smith of Texas, and
Intellectual Property Subcommittee Ranking Member Howard
Coble of North Carolina on April 24, 2008. The language and
approach of H.R. 5889 is based upon the 2006 language for
which I had the privilege of being the lead Congressional
staffer responsible for its progress.
Like H.R. 5439 from 2006, the 2008
legislation allows for a limitation on remedies, i.e. no
statutory damages or attorneys fees, to be imposed against
the user of a copyrighted work if the following is true:
- The user undertook a qualifying search (called a reasonably diligent, good faith search in 2006) to locate the owner and could not find him or her
- The user identified the owner as much as possible when using the work (such as listing the initials of the photographer if they were on the back of the original print)
- With some exceptions for ongoing uses, stopping use of the work if the owner reappears and says “stop”
- The user acted in good faith in searching for and negotiating with the owner
- Paying back royalties for the use on a “willing seller, willing buyer” standard if the use was commercial in nature for certain categories of uses
Unlike H.R. 5439 from 2006, the 2008 legislation includes the following:
- A delayed effective date until the earlier of 2013 or the date on which the Register of Copyrights (currently Marybeth Peters) certifies two databases that can be used to search for pictorial, graphic, and sculptural works (not in the Senate version which sets an effective date of 2011 for these works)
- A study of the copyright registration deposit system by the General Accountability Office (GAO)
- A requirement for users to file an advance notice of use with the Copyright Office (not in the Senate version)
- A requirement that uses of orphan works be identified with a special symbol to be created by the Copyright Office
- Allowing a judge to award extra compensation if a work was registered (not in the Senate version)