Compulsory license schemes, which would exclude orphaned works from copyright protections, are rarely acceptable under international copyright treaties. Such schemes are only worthy of consideration when there are more significant concerns than orphan works, such as a risk of market failure due to very high costs in places like the satellite retransmission market.
In January 2006, the United States Copyright Office released a report on orphan works after researching the issue. The situation in the US is a result of the omnibus revision to the Copyright Act in 1976. Specifically, the 1976 Act made obtaining and maintaining copyright protection substantially easier than the 1909 Act. Copyrighted works are now protected the moment they are fixed in a tangible medium of expression, and do not need to be registered with the Copyright Office. Also, the 1976 Act changed the basic term of copyright from a term of fixed years from publication to a term of life of the author plus 50 (now 70) years. In so doing, the requirement that a copyright owner file a renewal registration in the 28th year of the term of copyright was essentially eliminated.
The Office noted that these changes were important steps toward the United States’ accession to the Berne Convention, which prohibits formalities like registration and renewal as a condition on the enjoyment and exercise of copyright. Moreover, there was substantial evidence presented during consideration of the 1976 Act that the formalities such as renewal and notice, when combined with drastic penalties like forfeiture of copyright, served as a “trap for the unwary” and caused the loss of many valuable copyrights. The Copyright Office found that these changes exacerbated the problem of orphan works: a potential user generally must assume that a work one wishes to use is subject to copyright protection, but without the Copyright Office's renewal registration records, cannot ascertain whether the work is still copyrighted or in the public domain.
The report recommended that the focus on developing legislative text to address orphan works should not obscure the fact that the Copyright Act and the market place for copyrighted works provide several alternatives to a user who is frustrated by the orphan works situation. Indeed, assessing whether the situations described to use in the comments were true “orphan works” situations was difficult, in part because there is often more than meets the eye in a circumstance presented as an “orphan works” problem. In most cases a user may have a real choice among several alternatives that allow them to go forward with their project: making noninfringing use of the work, such as by copying only elements not covered by copyright; making fair use; seeking a substitute work for which they have permission to use; or a combination of these alternatives. Even though some orphan works situations may be addressed by existing copyright law as described above, many are not.
The Copyright office has recommended new legislation which sets out limitations on the remedies that would be available if the user proves that they have conducted a reasonably diligent search and describes a threshold of requirements of a reasonably diligent search. Such a solution would fall short of releasing orphan works into the public domain, like the previous bill, but rather encourage prospective licensors to go ahead with an infringing project knowing in advance the maximum remedy they could be faced with.
In May 2006, U.S. Representative Lamar Smith introduced H.R.5439, a bill aimed at addressing the issue of orphan works by providing limitations of remedies in cases in which the copyright holder cannot be located. However this bill was withdrawn in September 2006.
Subsequently in March 2008, a hearing was made in the US house of representatives aimed at reintroducing a broadly similar bill. And on April 24th, the bill was officially introduced to congress.
The full text of the Senate version of the 2008 Orphan Works bill (S.2913) is now available and Senator Patrick Leahy's introduction of the bill has been posted on his website. Section 3 introduces the idea of a Database of Pictorial, Graphic, and Sculptural Works and states:
The Copyright Office must create and undertake a certification process for the establishment of electronic databases of visual works. Certain requirements for any such registry are prescribed. The Copyright Office will post a list of all certified registries on the Internet.
A similar bill (H.R. 5889) is also in the House, which also calls for a database of pictorial, graphic and sculptural works.
The legislation was supported by a wide variety of organizations, including libraries, archives, academic institutions, and filmmakers.
Opposing the legislation were numerous art licensing organizations, arguing that
[t]he Copyright Office proposal would have a disproportionately negative, even catastrophic, impact on the ability of painters and illustrators to make a living from selling copies of their work...
In July 2008, the Artists Rights Society, the Illustrator's Partnership of America (IPA) and the Advertising Photographers of America (APA) submitted to congress a document titled, " Suggested Amendments to H.R. 5889: Orphan Words Act of 2008" The document outlined 12 admendments which the ARS, IPA and APA believe will decrease the potential negative impact of the Orphan Works Act.
The European Commission also brought an arbitration against the United States in the World Trade Organization for the US violation of the Berne Convention with the passing of the Fairness in Music Licensing Act, a much less expansive law than the orphan works legislation currently pending in the Congress. The United States lost the arbitration and is currently paying undisclosed reparations to the WTO.
On June 4, 2008 European representatives of museums, libraries, archives, audiovisual archives and right-holders signed a Memorandum of Understanding, an orphan works legislation supported by rights-holders. It will help cultural institutions to digitize books, films and music whose authors are unknown, making them available to the public online.
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