Orphan works in the United States
Encyclopedia
An orphan work is a copyright
work where it is difficult or impossible to identify or contact the copyright owner.
See United States copyright law
, which eliminated the need to register copyrighted works, instead declaring that all "original works of authorship fixed in any tangible medium of expression" fall into copyright status. The elimination of registration also eliminated a central recording location to track and identify copyright-holders. Consequently, potential users of copyrighted works, e.g., filmmakers or biographers, must assume that many works they might use are copyrighted. Where the planned use would not be otherwise permitted by law (for example, by fair use
), they must themselves individually investigate the copyright status of each work they plan to use. With no central database of copyright-holders, identifying and contacting copyright-holders can sometimes be difficult; those works that fall into this category may be considered "orphaned".
Libraries and archives have limited privileges to make copies of certain orphan works under 17 USC 108(h)(1).
was introduced as House
Bill
2601 for the United States 108th Congress in 2003 but never passed. It was reintroduced as House Bill 2408 for the 109th Congress in 2005 but died again. The bill would have released certain orphan works into the public domain if the copyright renewal registrations were not made as required.
released a report on orphan works after researching the issue. The situation in the US is a result of the omnibus revision to the Copyright Act in 1976. Specifically, the 1976 Act made obtaining and maintaining copyright protection substantially easier than the 1909 Act. Copyrighted works are now protected the moment they are fixed in a tangible medium of expression, and do not need to be registered with the Copyright Office. Also, the 1976 Act changed the basic term of copyright from a term of fixed years from publication to a term of life of the author plus 50 (now 70) years. In so doing, the requirement that a copyright owner file a renewal registration in the 28th year of the term of copyright was essentially eliminated.
The Office noted that these changes were important steps toward the United States’ accession to the Berne Convention
, which prohibits formalities like registration and renewal as a condition on the enjoyment and exercise of copyright. Moreover, there was substantial evidence presented during consideration of the 1976 Act that the formalities such as renewal and notice, when combined with drastic penalties like forfeiture of copyright, served as a “trap for the unwary” and caused the loss of many valuable copyrights. The Copyright Office found that these changes exacerbated the problem of orphan works: a potential user generally must assume that a work one wishes to use is subject to copyright protection, but without the Copyright Office's renewal registration records, cannot ascertain whether the work is still copyrighted or in the public domain
.
The report recommended that the focus on developing legislative text to address orphan works should not obscure the fact that the Copyright Act and the market place for copyrighted works provide several alternatives to a user who is frustrated by the orphan works situation. Indeed, assessing whether the situations described to use in the comments were true “orphan works” situations was difficult, in part because there is often more than meets the eye in a circumstance presented as an “orphan works” problem. In most cases a user may have a real choice among several alternatives that allow them to go forward with their project: making noninfringing use of the work, such as by copying only elements not covered by copyright; making fair use; seeking a substitute work for which they have permission to use; or a combination of these alternatives. Even though some orphan works situations may be addressed by existing copyright law as described above, many are not.
The Copyright office has recommended new legislation which sets out limitations on the remedies that would be available if the user proves that they have conducted a reasonably diligent search and describes a threshold of requirements of a reasonably diligent search. Such a solution would fall short of releasing orphan works into the public domain, like the previous bill, but rather encourage prospective licensors to go ahead with an infringing project knowing in advance the maximum remedy they could be faced with.
(Republican of Texas
) introduced H.R.5439, a bill aimed at addressing the issue of orphan works by providing limitations of remedies in cases in which the copyright holder cannot be located. However this bill was withdrawn in September 2006.
Subsequently in March 2008, a hearing was held in the U.S. House of Representatives aimed at reintroducing a broadly similar bill.
And on April 24, the bill was officially introduced to Congress
.
The full text of the Senate version of the 2008 Orphan Works bill (S.2913) is now available and Vermont
Democratic Senator Patrick Leahy's introduction of the bill has been posted on his website.
Section 3 introduces the idea of a Database of Pictorial, Graphic, and Sculptural Works and states:
A similar bill (H.R. 5889) is also in the House, which also calls for a database of pictorial, graphic and sculptural works.
Opposing the legislation were numerous art licensing organizations, arguing that
On May 7, 2008 The National Press Photographers Association
published a statement declaring they do not support the orphan works legislation. Among other comments the letter states. "Unfortunately what began as a measure to allow librarians, historians and educators increased access to older copyrighted works has become a misguided attempt to dilute current copyright law, which is something that we as an organization of photojournalists cannot support."
After the NPPA statement was published, a coalition of artists and photographers mounted a grassroots
campaign protesting the bill as unfair, as did such organizations as the National Writers Union
. In July 2008, the Artists Rights Society
, the Illustrator's Partnership of America (IPA) and the Advertising Photographers of America (APA) submitted to congress a document titled, "Suggested Amendments to H.R. 5889: Orphan Works Act of 2008." The document outlined 12 amendments which the ARS, IPA and APA believed would decrease the potential negative impact of the Orphan Works Act.
A petition authored by conceptual artist Steve Lehman helped influence Members of Congress (MOC) and in a startling turn around, legal scholar Larry Lessig signed the petition. His declaring the bill unfair wilted support of the legislation in legal circles. The House and the Senate never agreed on a final version of the bill, which thus never reached a vote in the House of Representatives and was killed. Most Americans were unaware of the proposal.
Copyright
Copyright is a legal concept, enacted by most governments, giving the creator of an original work exclusive rights to it, usually for a limited time...
work where it is difficult or impossible to identify or contact the copyright owner.
See United States copyright law
United States copyright law
The copyright law of the United States governs the legally enforceable rights of creative and artistic works under the laws of the United States.Copyright law in the United States is part of federal law, and is authorized by the U.S. Constitution...
Orphan works
The "orphan works" problem arose in the United States with the enactment of the Copyright Act of 1976Copyright Act of 1976
The Copyright Act of 1976 is a United States copyright law and remains the primary basis of copyright law in the United States, as amended by several later enacted copyright provisions...
, which eliminated the need to register copyrighted works, instead declaring that all "original works of authorship fixed in any tangible medium of expression" fall into copyright status. The elimination of registration also eliminated a central recording location to track and identify copyright-holders. Consequently, potential users of copyrighted works, e.g., filmmakers or biographers, must assume that many works they might use are copyrighted. Where the planned use would not be otherwise permitted by law (for example, by fair use
Fair use
Fair use is a limitation and exception to the exclusive right granted by copyright law to the author of a creative work. In United States copyright law, fair use is a doctrine that permits limited use of copyrighted material without acquiring permission from the rights holders...
), they must themselves individually investigate the copyright status of each work they plan to use. With no central database of copyright-holders, identifying and contacting copyright-holders can sometimes be difficult; those works that fall into this category may be considered "orphaned".
Libraries and archives have limited privileges to make copies of certain orphan works under 17 USC 108(h)(1).
Public Domain Enhancement Act
The Public Domain Enhancement ActPublic Domain Enhancement Act
The Public Domain Enhancement Act , ) was a bill in the United States Congress which, if passed, would have added a tax for copyrighted works to retain their copyright status...
was introduced as House
United States House of Representatives
The United States House of Representatives is one of the two Houses of the United States Congress, the bicameral legislature which also includes the Senate.The composition and powers of the House are established in Article One of the Constitution...
Bill
Bill (proposed law)
A bill is a proposed law under consideration by a legislature. A bill does not become law until it is passed by the legislature and, in most cases, approved by the executive. Once a bill has been enacted into law, it is called an act or a statute....
2601 for the United States 108th Congress in 2003 but never passed. It was reintroduced as House Bill 2408 for the 109th Congress in 2005 but died again. The bill would have released certain orphan works into the public domain if the copyright renewal registrations were not made as required.
Copyright Office study
In January 2006, the United States Copyright OfficeUnited States Copyright Office
The United States Copyright Office, a part of the Library of Congress, is the official U.S. government body that maintains records of copyright registration in the United States. It is used by copyright title searchers who are attempting to clear a chain of title for copyrighted works.The head of...
released a report on orphan works after researching the issue. The situation in the US is a result of the omnibus revision to the Copyright Act in 1976. Specifically, the 1976 Act made obtaining and maintaining copyright protection substantially easier than the 1909 Act. Copyrighted works are now protected the moment they are fixed in a tangible medium of expression, and do not need to be registered with the Copyright Office. Also, the 1976 Act changed the basic term of copyright from a term of fixed years from publication to a term of life of the author plus 50 (now 70) years. In so doing, the requirement that a copyright owner file a renewal registration in the 28th year of the term of copyright was essentially eliminated.
The Office noted that these changes were important steps toward the United States’ accession to the Berne Convention
Berne Convention for the Protection of Literary and Artistic Works
The Berne Convention for the Protection of Literary and Artistic Works, usually known as the Berne Convention, is an international agreement governing copyright, which was first accepted in Berne, Switzerland in 1886.- Content :...
, which prohibits formalities like registration and renewal as a condition on the enjoyment and exercise of copyright. Moreover, there was substantial evidence presented during consideration of the 1976 Act that the formalities such as renewal and notice, when combined with drastic penalties like forfeiture of copyright, served as a “trap for the unwary” and caused the loss of many valuable copyrights. The Copyright Office found that these changes exacerbated the problem of orphan works: a potential user generally must assume that a work one wishes to use is subject to copyright protection, but without the Copyright Office's renewal registration records, cannot ascertain whether the work is still copyrighted or in the public domain
Public domain
Works are in the public domain if the intellectual property rights have expired, if the intellectual property rights are forfeited, or if they are not covered by intellectual property rights at all...
.
The report recommended that the focus on developing legislative text to address orphan works should not obscure the fact that the Copyright Act and the market place for copyrighted works provide several alternatives to a user who is frustrated by the orphan works situation. Indeed, assessing whether the situations described to use in the comments were true “orphan works” situations was difficult, in part because there is often more than meets the eye in a circumstance presented as an “orphan works” problem. In most cases a user may have a real choice among several alternatives that allow them to go forward with their project: making noninfringing use of the work, such as by copying only elements not covered by copyright; making fair use; seeking a substitute work for which they have permission to use; or a combination of these alternatives. Even though some orphan works situations may be addressed by existing copyright law as described above, many are not.
The Copyright office has recommended new legislation which sets out limitations on the remedies that would be available if the user proves that they have conducted a reasonably diligent search and describes a threshold of requirements of a reasonably diligent search. Such a solution would fall short of releasing orphan works into the public domain, like the previous bill, but rather encourage prospective licensors to go ahead with an infringing project knowing in advance the maximum remedy they could be faced with.
Orphan Works legislation introduced
In May 2006, U.S. Representative Lamar S. SmithLamar S. Smith
Lamar Seeligson Smith is the U.S. Representative for , serving since 1987. The district includes most of the wealthier sections of San Antonio and Austin, as well as nearly all of the Texas Hill Country...
(Republican of Texas
Texas
Texas is the second largest U.S. state by both area and population, and the largest state by area in the contiguous United States.The name, based on the Caddo word "Tejas" meaning "friends" or "allies", was applied by the Spanish to the Caddo themselves and to the region of their settlement in...
) introduced H.R.5439, a bill aimed at addressing the issue of orphan works by providing limitations of remedies in cases in which the copyright holder cannot be located. However this bill was withdrawn in September 2006.
Subsequently in March 2008, a hearing was held in the U.S. House of Representatives aimed at reintroducing a broadly similar bill.
And on April 24, the bill was officially introduced to Congress
United States Congress
The United States Congress is the bicameral legislature of the federal government of the United States, consisting of the Senate and the House of Representatives. The Congress meets in the United States Capitol in Washington, D.C....
.
The full text of the Senate version of the 2008 Orphan Works bill (S.2913) is now available and Vermont
Vermont
Vermont is a state in the New England region of the northeastern United States of America. The state ranks 43rd in land area, , and 45th in total area. Its population according to the 2010 census, 630,337, is the second smallest in the country, larger only than Wyoming. It is the only New England...
Democratic Senator Patrick Leahy's introduction of the bill has been posted on his website.
Section 3 introduces the idea of a Database of Pictorial, Graphic, and Sculptural Works and states:
A similar bill (H.R. 5889) is also in the House, which also calls for a database of pictorial, graphic and sculptural works.
Opposing the legislation were numerous art licensing organizations, arguing that
On May 7, 2008 The National Press Photographers Association
National Press Photographers Association
NPPA is the acronym for the National Press Photographers Association, founded in 1947. The organization is based in Durham, North Carolina and its mostly made up of still photographers, television videographers, editors, and students in the journalism field...
published a statement declaring they do not support the orphan works legislation. Among other comments the letter states. "Unfortunately what began as a measure to allow librarians, historians and educators increased access to older copyrighted works has become a misguided attempt to dilute current copyright law, which is something that we as an organization of photojournalists cannot support."
After the NPPA statement was published, a coalition of artists and photographers mounted a grassroots
Grassroots
A grassroots movement is one driven by the politics of a community. The term implies that the creation of the movement and the group supporting it are natural and spontaneous, highlighting the differences between this and a movement that is orchestrated by traditional power structures...
campaign protesting the bill as unfair, as did such organizations as the National Writers Union
National Writers Union
National Writers Union , founded on November 19, 1981, is the trade union in the United States for freelance and contract writers: journalists, book and short fiction authors, business and technical writers, web content providers, and poets...
. In July 2008, the Artists Rights Society
Artists Rights Society
Artists Rights Society is a copyright, licensing, and monitoring organization for visual artists in the United States. Founded in 1987, ARS represents the intellectual property rights interests of over 50,000 visual artists and estates of visual artists from around the world .- Member Artists &...
, the Illustrator's Partnership of America (IPA) and the Advertising Photographers of America (APA) submitted to congress a document titled, "Suggested Amendments to H.R. 5889: Orphan Works Act of 2008." The document outlined 12 amendments which the ARS, IPA and APA believed would decrease the potential negative impact of the Orphan Works Act.
A petition authored by conceptual artist Steve Lehman helped influence Members of Congress (MOC) and in a startling turn around, legal scholar Larry Lessig signed the petition. His declaring the bill unfair wilted support of the legislation in legal circles. The House and the Senate never agreed on a final version of the bill, which thus never reached a vote in the House of Representatives and was killed. Most Americans were unaware of the proposal.