H.R. 5439, the Orphan Works Act of 2006,
was introduced by then House Judiciary Committee
Intellectual Property Subcommittee Chairman (now full
Committee Ranking Member) Lamar Smith of Texas on May 22,
2006. The language and approach of H.R. 5439 was based upon
the recommended language of the Copyright Office - see page
127 of the Copyright Office report
(pdf), modified to reflect
the discussions hosted by the Intellectual Property
Subcommittee that fall. I can be seen sitting next to
the then-Subcommittee Chairman Lamar Smith of Texas in
the video of the March 8, 2006 oversight hearing
on orphan works and the
related Copyright Office report.
H.R. 5439 allowed 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 was true:
- The user undertook a reasonably diligent, good faith search 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 an exception for ongoing uses, stopping use of the work if the owner reappears and says “stop”
- Paying back royalties for the use on a “willing seller, willing buyer” standard if the use was commercial in nature
More recent versions of orphan works legislation, that were sponsored by the leadership of the House and Senate Judiciary Committees, were both introduced on April 24, 2008 as H.R. 5889 and S. 2913.