H.R. 5889, the Orphan Works Act of 2008, was introduced on
April 24, 2008 by three leading Members of the U.S. House
of Representatives responsible for intellectual property
legislation:
- House Judiciary Committee Intellectual Property Subcommittee Chairman Howard Berman of California
- Full Judiciary Committee Ranking Member Lamar Smith of Texas, and
- Intellectual Property Subcommittee Ranking Member Howard Coble of North Carolina.
The Intellectual Property Subcommittee of the House Judiciary Committee voted by a unanimous vote on May 7, 2008 to send the bill to the full U.S. House Judiciary Committee. The webcast of this vote can be found here. A manager's amendment was offered and agreed to at this markup which made several changes to the original bill. Several other amendments were discussed, but were not formally voted on during this markup. A full Committee markup was not held on H.R. 5889 and the legislation expired at the end of 2008 with the end of the 110th Congress.
Like H.R. 5439 from 2006, the 2008 legislation 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 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 on a reasonable royalty
- 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 included 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 original Senate version which set an effective date of 2011 for these works - it is now 2013 in the 2008 passed Senate version as well)
- 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)
H.R. 5889 was supported by some visual arts groups as an alternative to S. 2913 which did not contain several provisions that were important to some of the visual arts community.