Orphans in the Copyright Wilderness

David Heath
Monday, 19 May 2008 19:25

IT Policy - Regulation

If you own copyright in a work, prepare to lose all control over it; prepare to be ripped off.  Well, that’s what the critics of The Shawn Bentley Orphan Works Act of 2008 will tell you.

The strident re-quoting of mis-representations over the upcoming Orphan Works Bill currently before the US Senate and Congress is quite astonishing.  Try here or here, perhaps here or even here.  For something a little ‘straighter,’ try this summary from one of the bill’s sponsors, Senator Patrick Leahy.

Here’s a summary of Sen. Leahy’s summary. 

* Orphaned works are a problem.  If someone wants to legitimately re-use a copyrighted work, without obtaining permission of the copyright owner, they cannot.

* To overcome this, an intended user of an orphaned work must do three things:

1. Perform and document a good faith – but ultimately unsuccessful – search for the owner of the copyright in the work being used prior to such use.

2. Provide attribution if the identity, but not location, of the owner is known.

3. Include with the use of the infringing work a symbol, indicating the author was not located, in a manner the Copyright Office will prescribe. 

* The search for the copyright owner must not only be diligent, but be demonstrably so.

* To simplify the process, copyright owners are invited to make use of a registration service to ensure their works are not considered orphans.  Such registration services may be provided by the Copyright Office, private organisations or other similar groups.  Such services may (emphasis mine) require a charge or subscription fee.

* Reasonable remedies are provided for those copyright holders who later determine that their works have been used, without recourse to civil (and very expensive) court action.

Various commentators of equally various relevance have weighed in on the argument.  Some blame big business, others ‘out-of-touch’ politicians; few if any seem to think the government has it right.