Reducing Creative and Business Risk by Eliminating Statutory Damages for Uses of “Orphan Works”
Authors, recording artists, publishers and producers of all types of material (including of popular, documentary and scholarly works) frequently confront copyright risk (including the risk of statutory damages being assessed) when they include an excerpt of a copyrighted work whose owner cannot be identified or located. These so-called “orphan works” problems arise because in 1976 Congress eliminated the requirement of registration in order to gain legal copyright status.
DiMA Position
Congress should eliminate the risk of statutory damages (which will essentially eliminate the risk of infringement litigation and its associated costs) if an unlicensed user of copyrighted material conducted a reasonably diligent good-faith search for the work’s owner before using it.
Status
In 2008 orphan works legislation was approved by the U.S. Senate, and a separate bill was approved by the House Subcommittee on Courts, the Internet and Intellectual Property, but not by the full Judiciary Committee. The bills’ differences could not be resolved and so the legislation died. Legislation has not been re-introduced in 2009.
Orphan Works Act of 2008 (H.R. 5889)