Bills have been introduced in the United States House of Representatives and Senate to address the status of so-called “orphan” works. The bills differ in signifi­cant ways from one another and from the orphan works bill that was introduced in 2006 in the 109th Congress. With respect to the bill introduced in the 109th Congress (H.R. 5439) I wrote in Communication Arts (Design Annual, 2006) that, “In fact, the Orphan Works bill is simply an appealing description for what should be called free use or, less politely, theft. Every­one roots for an orphan to be adopted, but what if we called the bill the Protection of Copyright Theft Act?…The potential magnitude of the unrecompensed taking of creative work is staggering.” The leading trade groups for visual creators opposed the bill and it died a well-deserved death.

THE LEGISLATIVE BACKGROUND
The fate of the bills in the 110th Congress is not so clear. In particular, the House bill (H.R. 5889) sponsored by Repre­sentative Howard L. Berman of California has adopted a number of provisions to safeguard copyright owners while the Senate bill (S. 2913) tracks closely with the House bill introduced in 2006 and opposed by the community of artists.

The 2006 House bill (H.R. 5439) allowed the use of a work without permission if the user has “performed and documented a reasonably diligent search in good faith to locate the owner of the infringed copyright.” If the search does not locate the owner of the copyright, then the user may proceed to use the work. Even though this use is technically an infringement, the penalties for the infringement are minimal or nonexistent. Should a copyright owner discover such an infringement, the owner can only obtain “reasonable compensation” and the infringement can continue. In addition, the owner is not allowed to seek damages, cost or attorney’s fees, which the owner would normally be allowed to seek in a copyright infringement suit if the work has been registered prior to the infringement. Should the infringement be “without any purpose of direct or indirect commercial advantage and primarily for a charitable, religious, scholarly, or educational purpose,” and the usage ceases after the copyright owner complains, then the owner would not even have the right to ask for reasonable compensation.

One central problem of H.R. 5439 is the requirement that a potential user conduct a “reasonably diligent search.” This required searching the “records of the Copyright Office” as well as other sources to find information as to copyright owner­ship. Since only the tiniest fraction of copyright-pro­tected works of visual art are registered with the Copyright Office and no other source even remotely approaches being definitive with respect to owners’ identities, any “reasonably diligent search” will probably not find the copyright owner of a work.

THE NEW SENATE BILL
The Judiciary Committee has reported S. 2913 to the Senate for further action. In the course of the Committee’s delibera­tions, the original bill was replaced by a bill that closely resembled the 2006 House bill. Under the bill’s provisions, an infringer is not subject to penalties if before using the work the infringer performed in good faith a “reasonably diligent search” but could not find the copyright owner. With respect to what is a reasonably diligent search, the Register of Copyrights will issue best practices with respect to searching relevant records of the Copyright Office, private databases and online databases as well as the use of technology tools and expert assistance. In addition, the use has to give what­ever attribution is possible with respect to the work. Monetary compensation is limited to “reasonable compensation” based on what a “willing buyer and a willing seller would have agreed with respect to the infringing use of the work immediately before the infringing work began.”

The Senate bill differs from the 2006 House bill by adding to the “educational, religious, or charitable” exemption from liability, the requirement that the infringer be, “a nonprofit education institution, museum, library, archives, or a public broadcasting entity…or any of such entities’ employees…” Another new requirement is that any usage pursuant to the Senate bill would have to include a mark indicating this in a form that would be prescribed by the Register of Copyrights. In addition, “useful articles” containing pictorial, graphic or sculptural works are excluded from being considered orphan works. These are small concessions that improve the bill from the viewpoint of creators but go nowhere near far enough to make the bill acceptable for copyright creators.