This past Friday, the Senate passed the Shawn Bentley Orphan Works Act of 2008. The bill’s provisions are mostly similar to the version as introduced. Alex’s analysis of the provisions of the bill as introduced can be found here. The major change in the bill as passed is in the “diligent search” provisions.
The bill improves upon previous “diligent search” language by clearly spelling out the user’s obligations, thereby addressing the argument that insufficient searches would permit the use of works that were not truly orphaned. Under the Senate’s language, users must:
- Search the relevant Copyright Office records;
- Search for the owner in reasonably available sources of copyright authorship and ownership information;
- Use technology tools, printed publications and expert assistance; and
- Search databases including those available through the Internet
While the bill calls the above minimums, the bill also requires that a qualifying search ordinarily be based on further guidelines. Previous drafts suggested that a court defer to the Copyright Office’s guidelines and left it up to the Copyright Office to develop its best practices with various levels of public input. Many feared that the Office did not have the necessary expertise to play this role. The Office would need to look to outside sources of authorship and ownership information, technology tools and sources of expert assistance. Examples of such sources of ownership information could be the ASCAP database for ownership of musical works or the Internet Movie Database of production and distribution companies. Examples of sources of expert assistance could be services such as Clear Inc. which assist filmmakers in searching for copyright owners. But the problem with this approach was that the Office was placed in the position of picking which sources to approve and also what search steps users had to take in order to search for owners. Thankfully, as far as the guidelines that make up a user’s qualifying search, the bill now places the Copyright Office’s “best practices” (which the bill now calls “recommended practices”) on the same footing as those developed by user, author, and owner groups that have expertise in searching for copyright owners.
The bill has other differences from the version as introduced. It calls upon the Copyright Office to take into account comments of the Small Business Administration Office of Advocacy in formulating its best practices and certifying visual registries. The purpose of the provision is ostensibly to allay fears of visual artist groups who have vehemently opposed the bill. The sovereign immunity language for universities has been worked out. The word “commercial” now modifies “distribution to the public” in the section that prohibits the use of orphans in or on a useful articles. And the visual registry provisions of the bill have fewer conditions to streamline their certification by the Copyright Office, presumably in an effort to hasten the effective date.
Although not perfect, the Shawn Bentley Orphan Works Act is a great step towards restoring some balance to copyright law. As Register of Copyrights Marybeth Peters notes, “a solution to the orphan works problem is overdue”. The legislation “has benefitted from many months of discussion, reflection and fine-tuning under the leadership of Senators Patrick Leahy and Orrin Hatch and Representatives Howard Berman and Lamar Smith.” We hope that following the Senate’s example the House will pass the orphan works bill by the end of this session of Congress.