I'm not sure how well I understand these proposals, but it looks to me
like there's still an unreasonable (or at least imprecise) burden on
someone wanting to use an orphan work. Why should a user be responsible
for paid searches whose requirements are unclear, or for any charge or
penalties beyond standard royalty payments?
If the rules aren't clear and reasonable, a disincentive to use orphan
works will remain.
It would be nice if, when procedures do become clear, for LC (or another
responsible party) to create a database(s) for works that have been
searched, and their current status noted.
Rob Bamberger <[log in to unmask]>
Sent by: Association for Recorded Sound Discussion List <[log in to unmask]>
05/25/2006 11:01 AM
Please respond to
Association for Recorded Sound Discussion List <[log in to unmask]>
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[ARSCLIST] Update on H.R. 5439
As reported in Congressional Quarterly:
House Panel Approves Measure to Make 'Orphan' Copyrighted Works
Easier to Use
By Shweta Govindarajan and Seth Stern, CQ Staff
A House Judiciary panel approved legislation Wednesday that would make
it easier to use copyrighted material when the owner cannot be located.
The Courts, the Internet and Intellectual Property Subcommittee
approved the bill (HR 5439) by voice vote.
Sponsored by subcommittee Chairman Lamar Smith, R-Texas, the bill is
designed to address what are known as "orphan works" that may be so
old, or have changed hands so many times, that it is difficult for a
potential user to find the copyright holder to obtain permission.
The bill would establish Copyright Office guidelines that users could
follow to reduce the threat of lawsuits later.
During the markup, the panel's ranking Democrat, Howard L. Berman of
California, expressed overall support for the measure but said he was
concerned about the lack of an effective database for photographs, as
well as the absence of a user-friendly search capability in the
'Reasonably Diligent' Searches
Under the measure, liability would be limited for users who make a
"reasonably diligent search" to find a copyright holder. Users
would be required to conduct such searches, including paid searches to
determine the owner. If an owner does reappear later, it would be his or
her burden to show the amount of "reasonable compensation" a willing
buyer and seller would have exchanged.
Smith's measure has numerous supporters, including the Association of
Independent Video and Filmmakers; Doculink; the Film Arts Foundation;
Film Independent, or FIND; the International Documentary Association;
the Independent Feature Project; the National Alliance for Media Arts
and Culture; and National Video Resources.
Those groups, part of a coalition called Public Knowledge, say the bill
is an improvement over an earlier Copyright Office proposal because it
would allow a new work containing "orphan works" to go forward, even
though the authors of the new work later might have to pay compensation
to the copyright holder.
The bill also would eliminate a provision in the Copyright Office draft
that would have required the rules to sunset after five years. Its
proposed changes would not go into effect until June 1, 2008, to ensure
copyright owners have time to develop the best practices guides for
Source: CQ Today