This is the statement we sent out yesterday on the Orphan Works bill. Gigi covered it pretty well in her blog post.
Background: Yesterday, Rep. Lamar Smith (R-TX), chairman of the House Intellectual Property Subcommittee, introduced HR 5439, the Orphan Works Act of 2006. The bill is scheduled to be marked up in subcommittee tomorrow (May 24).
Public Knowledge is part of a coalition that has been active in promoting the use of orphan works. Others in the group are: Association of Independent Video and Filmmakers; Doculink; Film Arts Foundation; FIND (Film Independent); International Documentary Association; Independent Feature Project (IFP); National Alliance for Media Arts and Culture; National Video Resources.
The following is a statement from Gigi B. Sohn, president and co-founder of Public Knowledge:
We thank Chairman Smith for his work on this issue. We believe the Smith bill is a significant improvement over the draft bill proposed in February by the Copyright Office.
The bill will allow for more use of works for which the copyright holder can't be found – “orphan works.” The Smith bill would allow a new work which includes an entire orphan work to go forward in the face of a copyright challenge later on. For example, publication of a history book which includes an orphaned photograph could not be stopped because of the photo. The authors of the book may have to pay compensation to the copyright holder, but publication of the book would not be stopped.
The bill would limit liability for those who make a “reasonably diligent search” to find a copyright holder but cannot. The bill makes clear that in determining the 'reasonable compensation' an orphan works user must pay should the orphan works owner reappear, the owner has the burden of establishing the amount that a willing buyer and willing seller would have agreed to. The bill also eliminates a provision in the Copyright Office draft that would have required the rules to sunset after 5 years.
We would prefer a cap on damages as opposed to the “reasonable compensation” standard in the bill. At the least, there should be more certainty that “reasonable compensation” will not lead to great financial liability for the user. We hope there will be language in the Judiciary Committee report on the bill that would make clear that the amount of compensation for use of an orphan work that has been out of circulation should be low and should decline over time.
We also would prefer the “safe harbor,” which prohibits any payment if a user immediately ceases using the orphan work when an owner reappears, to apply both to commercial and non-commercial uses. The concern here is that small artists who sell their works should be entitled to the same safe harbor as large museums and libraries. We continue to work on language that seeks to protect small artists.
UPDATE: The Subcommittee approved the bill on May 24.