New Bills Would Limit Liability on Use of "Orphan Works"

Authored by Mark Hefflinger on April 25, 2008 - 9:43am.

Washington - A bipartisan group of powerful lawmakers this week introduced legislation that would mitigate the legal risk and potential damages associated with the use of "orphan works," or songs, books or other copyrighted media where the creator or owner cannot be identified. Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) and Sen. Orrin Hatch (R-Utah) are sponsoring the Shawn Bentley Orphan Works Act of 2008 in the Senate, while House Judiciary IP Subcommittee Chairman Howard Berman (D-Calif.) and House Judiciary Committee ranking member Rep. Lamar Smith (R-Texas) introduced The Orphan Works Act of 2008 in the House.

The bills would enable creators to use orphaned works after documenting a "good faith" search for their owners, submitting a "Notice of Use" with the copyright office, and providing attribution to any original owner.

Should the copyright holder eventually emerge, the proposed legislation would limit the usual infringement damages of $150,000 per work to a reasonable license fee.

"Despite tremendous interest in using these orphan works in new collections and new creations, they often languish unseen, because those who would like to bring them to light, and to the attention of the world, fear the prospect of prohibitively expensive statutory damages," Sen. Leahy said in a statement.

"The works will no longer be orphans; their owners will reap the financial benefits of their use, while the public reaps the creative benefits."

The House and Senate versions of the bills differ slightly, and will need to be reconciled before proceeding.

However, Ars Technica notes that the upcoming election and other matters before Congress make it likely that the bills will not see much action in the current session, and will instead be reintroduced next year.