May 23, 2006 Beth Frigola
Press Secretary
(202) 225-4236

Smith Introduces Copyright Bill

Washington, D.C.  Chairman Lamar Smith (TX-21) today introduced the Orphan
Works Act of 2006 (H.R. 5439), which creates new guidelines for use of
copyrighted material when the original owner cannot be located.

The orphan works issue arises when someone who wants to use a copyrighted
work cannot find the owner, no matter how diligently they search, said
Chairman Smith. The owner may have moved several times, died, or in the
case of businesses, changed their name or gone bankrupt.

For example, a local civic association may want to include old photographs
from the local library archive in their monthly newsletter, but there are
no identifying marks on the photo, explained Smith. Under current law, the
civic association must locate the owner to ask permission and in many
cases may not be able to find the owner. 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

The Orphan Works Act is the product of over 20 hours of negotiations among
various interested parties and the Subcommittee on Courts, the Internet,
and Intellectual Property, chaired by Smith. It incorporates language from
a year-long study conducted by the United States Copyright Office. The
bill does the following:

Provides for payment of attorneys fees and costs when an infringer refuses
to pay a reasonable royalty;

Directs the Copyright Office to conduct an inquiry on remedies for small
copyright claims;

Provides explicit description of steps a potential user must undertake
before using a work;

Requires that paid search tools be used when reasonable;

Limits the monetary relief safe harbor to uses that are for a primarily
charitable, religious, scholarly, or educational purpose;

Includes joint and several liability for those working with or on behalf
of users;

Makes clear that a lack of visible copyright ownership information on a
work is not sufficient to determine that a work is an orphan work;

Requires the Copyright Office to host a list of search tools and best
practices guides on how to conduct a reasonably diligent search;

Establishes a definition of reasonable compensation;

Ensures that an orphan works system does not trump existing statutory

Recognizes the state sovereign immunity issue; and

Delays the effective date of the bill until June 1, 2008 to ensure
copyright owners have time to develop best practices guides for searchers.

This bill upholds the rights of copyright owners while providing rational
limitations and remedies for cases in which the owner cannot be located,
concluded Smith. I look forward to mark-up of this legislation at
tomorrows Subcommittee meeting.