ARCHIVED NEWS PMP Question:I've been reading about the above Bill for the past few days and there seems to be a lot of confusion surrounding the issue.
- In layman's terms, what is the Orphan Works bill? - How will this bill affect songwriters, producers, artists in general? - How will this bill affect artists who reside outside of the U.S?
The Orphan Works Bill governs original works that belong to owners who are difficult to locate or identify. The Bill is very complex and vague. It originated in 2006, but was not enacted into law. On April 24, 2008, a proposed amendment to the Orphan Works Bill was introduced in the two houses of Congress (HR 5889 and S. 2913). The purpose of the amendment is to provide a limitation on judicial remedies in copyright infringement cases involving orphan works. In my opinion, the amendment, if enacted into law, has the potential to fuel many copyright lawsuits.
According to the Bill, a person that uses a copyrighted work without permission (an alleged infringer) may do so, as long as they: 1) performed and documented a qualifying search, in good faith, for the owner of the copyrighted work, and 2) was unable to locate the owner of such work. To clarify further, a qualifying search is when the alleged infringer engages in a diligent effort to locate the owner of the infringed copyright. The question at hand is how much proof is necessary to prove that a qualifying search actually took place? Presently, no solid answers exist. In my opinion, the Bill fails to stipulate the specific procedures and requirements necessary to perform the qualifying search.
Furthermore, the amendment states that once a copyright owner discovers that its work was commercially exploited without permission, the only monetary award that's available is to require the infringer to pay reasonable compensation to the legal or beneficiary owner of the exclusive right under the infringed copyright for the use of the infringed work. An award for actual and statutory damages, costs and attorney's fees may not be pursued. As you can see, such limitations on remedies may affect the main purpose behind why copyright claimants seek copyright protection. Also, an individual whose work is considered orphaned loses his/her ability to have a voice in how their work is being licensed.
A copyright exists the moment an original work of authorship is put in a tangible medium of expression (i.e., written, recorded). The main reason we register our creative works with the copyright office is to allow us to bring a lawsuit in federal court and sue for statutory damages (which can amount up to $150,000 per infringement in some cases) and attorney's fees. This amendment, as written, seems to threaten a person's ability to do so if their work was classified as an orphan.
Many originators of musical works use computers to save music in various digital formats as well as distribute electronic copies of music through the internet. Such files are at risk of being re-labeled over and over again as they are transferred from one user to the next. This can potentially render a copyright an "orphan work" if the names initially associated with the electronic files are eventually removed. This can be a nightmare for a copyright owner if the song was never properly registered with the copyright office.
Some advocates of the Bill believe that orphan works opens the doors for new creative and scholarly works by not denying the use of a copyrighted work just because the owner could not be identified or located. Many opponents believe it diminishes the value of the work, since use of the work is free until the user is classified as an alleged infringer.
The international issues associated with the Orphan Works Bill are immeasurable. Some columnists believe that this Bill will open the floodgates to bad faith dealing by exploiting foreign works. If the Bill is something you are passionate about, I suggest you write a letter to your Senator and Congressperson requesting that they do not sign this bill into law. |
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