Orphan Works

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Major Issues

Orphan Works

Recent News:

Senate Passes Leahy-Sponsored Orphan Works Bill
September 27, 2008

Senator Leahy has maintained a longtime interest in intellectual property issues. He has authored legislation in this Congress to provide meaningful reforms to our nation’s antiquated patent system, to provide for intellectual property enforcement, and to address inequities in performance rights for artists and musicians.

In April 2008, Senator Leahy partnered with Senator Orrin Hatch of Utah to introduce the Shawn Bentley Orphan Works Act. The bill would limit remedies for the use of orphan works – works that may be protected by copyright laws, but whose owners cannot be identified or located. The Judiciary Committee, which Senator Leahy chairs, unanimously reported the legislation to the Senate on May 15.

The Shawn Bentley Orphan Works Act does not dramatically restructure copyright law. The bill would allow users to display or employ orphan works only after a thorough and documented search failed to reveal the owner of a work. The bill outlines specific search criteria, and the Copyright Office is expected to post guidelines for the best practices for finding a copyright owner. Ultimately, a court will determine if an adequate search has been conducted in good faith. The orphan works bill also provides protections and compensation for copyright owners who may later emerge, and restores the possibility of statutory damages should any user exhibit bad faith.

Senator Leahy has acted for years to protect the rights of creators who hold copyrights. At its core, the Shawn Bentley Orphan Works Act seeks to unite users and copyright owners, and to ensure that copyright owners are compensated for the use of their works. It does not create any orphans, and it does not create a license to infringe.

The orphan works legislation has received support from the Register of Copyrights, the Motion Picture Association of America, the Software and Information Industry Association, the Association of American Publishers, the Recording Industry Association of America, Public Knowledge, the College Art Association, the Association of Art Museum Directors, ARTstor Inc., JSTOR, and the National Humanities Alliance.

S. 2913: Fact v. Fiction

S. 2913, the Shawn Bentley Orphan Works Act of 2008, enables use of orphan works – works that may be protected by copyright, but whose owners cannot be identified or located – under certain, limited circumstances. A user who conducts a good faith, diligent, but ultimately unsuccessful search for a copyright owner, will be liable to the copyright owner, if the owner later emerges, for reasonable compensation but not full statutory damages.

· The Shawn Bentley Orphan Works Act does not dramatically restructure copyright law – it simply provides for a limitation on damages in limited circumstances in which, among other things, the owner is not locatable after a diligent search.

· The Act does not abrogate the current rights system in copyright law or detract from a copyright owner’s exclusive rights.

· The Act does not require artists to register their works.

· Infringers must prove that they adhered to all of the provisions in the Act to qualify for a limitation on remedies and must negotiate to pay reasonable compensation to an owner who later emerges.

· Infringers do not become owners of the orphan work; to the contrary, they are liable for having committed copyright infringement and owe compensation for the infringement.

· The Act does not provide for a transfer of copyright ownership or rights.

The Shawn Bentley Orphan Works Act does not create orphans out of copyrighted works. Nor does it give users a free license to infringe copyrighted works. It embodies the basic premise of copyright law: if you use someone else’s copyrighted work, you must compensate the owner for it.

Watch Senator Leahy Discuss The Shawn Bentley Orphan Works Act:
Senate Judiciary Committee,
Executive Business Meeting
May 15, 2008

You can read the text of the bill by clicking here.

Resources from the Congressional Research Service:

"Orphan Works" In Copyright Law
(March 16, 2008)

The Congressional Research Service provides members of Congress with non-partisan research and analysis of legislation and issues. Sen. Leahy's goal is to make all of these reports available to the tax payer. This CRS report is available in PDF form to help you research this issue further.