Rumor has it that orphaned works legislation is now being drafted and will be brought to light for legislative consideration sometime this year. Such has been reported by the American Society of Media Photographers and was the topic of a legislative update at the recent ALI ABA Legal Issues in Museum Administration conference. According to such sources, there is a good chance that such legislation will be passed sometime this year.
The legislation would affect copyright-protected works that have been orphaned by their respective owners. Before you start humming, It's a Hard Knock Life, keep in mind that some of these works might not be true orphans. They might have parents somewhere. Without casting judgment on any parenting style, the gist is that some safe harbors should be afforded to users who have made a reasonably diligent, good-faith, but ultimately unsuccessful effort to locate a work's copyright holder.
The orphan-works problem is a symptom of the 1976 Copyright Act, which eliminated all of those pesky copyright compliance rules (you know, like publication without copyright notice would drag the work into public domain) to be able to comply with Berne requirements. But now that copyright holders need not render any affirmative action to ensure at least some level of copyright protection, it can be difficult to know who claims rights to what, even when a would-be user makes a sincere attempt to track down copyright information. By way of example, consider the copyright in a 1980's home movie purchased from a local thrift shop. What about that piece of code in a cool vintage video game? Who owns the rights? How would you ever locate the rights holder?
Orphaned works legislation would provide limited safe harbors in situations like these.
The proposal set forth by the Copyright Office in 2006 has three basic elements:
- The would-be publisher conducts a good-faith and reasonably diligent search.
- The publisher provides minimal and reasonable attribution, as possible (the idea here being that if a publisher uses a work without the copyright holder's permission, it shouldn't be passed off as it's own).
- In the event a copyright holder resurfaces and claims infringement, the copyright holder's damages would be limited to reasonable compensation for use with limited injunctive relief for derivative works made with the copyrighted work. A kind of compulsory licensing scheme, if you will....
The devil, of course, will be in the details. As John Waters has said, "There's no such thing as a bad home movie." I couldn't agree more! But can well imagine such a thing as bad orphaned works legislation. So, if you care about this, I encourage you to keep apprised of the legislation and let your voice be heard. In the meantime, the Copyright office report can be found here.
