S. 2913, the Shawn Bentley Orphan Works Act of 2008, was
introduced on April 24, 2008 by current Senate Judiciary
Committee Chairman Patrick Leahy of Vermont and former
Senate Judiciary Committee Chairman Orrin Hatch.
On May 15, 2008, the full Senate Judiciary Committee
voted to report the bill to the full
Senate after
adopting a manager's amendment that made several changes
to the legislation. This reporting vote meant that the
Senators on the Committee agreed with the bill and
believed that it was ready for a vote by all 100 U.S.
Senators. The full Senate then passed S. 2913 on
September 26, 2008 by a voice vote under unanimous
consent procedures in which no Senator objected to the
legislation’s passage.
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
- 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 study of the copyright registration deposit system by the General Accountability Office (GAO)
- A requirement that uses of orphan works be identified with a special symbol to be created by the Copyright Office