An Orphan and The Orphan Works Act

Today was another good day. My plan was to take the holiday weekend off and start on the first of my next two manuscripts next Tuesday.

But I woke this morning at 6:30, dying to tell Marley's story. Marley is a pickpocket who makes the mistake of selecting the wrong mark.

All day, in between errands, I kept returning to my laptop to work on Marley's story, tentatively called "Marked." By tonight, I had about 10% of the manuscript finished.

Since Marley is an orphan adopted by the Romani, it seemed appropriate to focus on "orphan works" for tonight's post.

Last Monday (5/22/06), U.S. Representative Lamar Smith (R-TX) introduced House Bill 5439. The bill is intended to make it easier for persons to use copyrighted material when the original owner cannot be located.

The Association of American Publishers, the trade association for U.S. publishers, supports this bill.

On 11/13/05, I blogged about the difficulty in locating copyrights holders. Google was giving this as the reason they were not seeking rights-holders' permission prior to copying books for their Google Print Library initiative.

The U.S. Copyright Office is one of the most antiquated entities in our government. Their database only includes copyrights back to 1978--less than thirty years. The Copyright Office itself says, "Because the Catalog does not include entries for assignments or other recorded documents, it cannot be used for searches involving the ownership of rights."

At the time I wrote my November blog, at least two copyright scholars had confirmed Google's statement that it would be impossible to locate the rights-holders on all the books in the Google Print Library project.

The Copyright Office says, "when it is impracticable to obtain permission, use of copyrighted material should be avoided unless the doctrine of 'fair use' would clearly apply to the situation."

I predicted that, at some point, the courts were going to have to decide whether and how fair use applies to Google Print's effort.

Now, along comes the Orphan Works Act. Copybites, a blog devoted to copyright law (http://www.copybites.com/2006/05/chairman_lamar_.html), did an excellent job of listing the provisions in the new bill.

The bill describes the steps that a potential user must take before using a work. These include performing and documenting a diligent search to locate the rights-holder of the work in question. If the user is unable to locate the rights-holder, s/he must provide attribution to the author and owner of the copyrighted work.

If the user takes these steps (which may include using paid search tools/expert assistance), the remedies for infringement shall be limited, meaning award of actual damages, statutory damages and attorneys' fees shall be limited if the rights-holder later brings an infringement suit.

If the rights-holder contacts the user, s/he shall be awarded "reasonable compensation." If the user/infringer refuses to pay that reasonable compensation, the bill provides for payment of attorneys fee and costs. Of course, if the user/infringer fails to negotiate in good faith, the Courts may award full costs including damages.

The bill also limits the reasonable compensation in the case of use "performed without any purpose of direct or indirect commercial advantage and primarily for a charitable, religious, scholarly, or educational purpose" OR if the user/infringer ceases the infringement "expeditiously" after receiving notice of the infringement.

The bill also directs the Copyright Office to provide search tools and best practice guidelines on what constitutes a reasonably diligent search. In order to provide time to do this, the effective date of the bill is delayed until June 1, 2008.

The sponsor of the bill, Representative Smith, said, "The orphan works issue arises when someone who wants to use a copyrighted work cannot find the owner, no matter how diligently they search . . . Under the Orphan Works Act, they could follow guidelines posted by the Copyright Office as a show of due diligence to reduce the threat of litigation for simply doing the right thing.”