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. The
language and approach of S. 2913 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 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