Orphan Works Proposals Moving Quickly through Congress

By Pike, George H. | Information Today, July/August 2008 | Go to article overview

Orphan Works Proposals Moving Quickly through Congress


Pike, George H., Information Today


Legal Issues

Nearly 16 months after an orphan works proposal died at the end of the 2005-2006 congressional session, two new proposals have been introduced and are moving rapidly through Congress. Between April and early May, the proposals (one in the House and one in the Senate) were introduced, marked up, and hustled through their respective committees.

Orphan works are those creative works where the copyright owner cannot be identified or located, or it cannot be determined if the work is copyrighted. Any new use of orphan works as part of a new work (an archive of old photos or a website featuring collections of letters) runs the risk of the copyright owner emerging and suing for thousands of dollars for infringement damages. With the web established as a tool for disseminating works that might otherwise be lost to time, Congress recognized the need to resolve the problem.

Copyright Office Report

The proposals emerged after the U.S. Copyright Office published a report in 2006 that identified the problem and proposed a solution. The Copyright Office's proposal required potential users to conduct a "reasonably diligent search" for the owner of works they wished to use. If the potential users were unable to locate the owner, they could then go forward with the new use. In return, if the original copyright owner was subsequently identified and asserted his or her copyright claim, the liability for infringement would be limited to providing reasonable compensation to the owner and giving the owner some rights to restrict further publication of the new work.

The congressional proposals outline a series of events that generally follow the Copyright Office's recommendations, beginning at the point the proposed user wants to use an orphan work and ending if and when the copyright owner emerges and sues the user for copyright infringement.

Qualifying Search

The first step for those who want to use an orphan work is to conduct a "good faith, qualifying and documented search" for the owner of the copyright before using the work. A "qualifying search" must be "diligent," must use fee-based resources if required, and requires the user to show that he or she followed up on all relevant facts, including any facts uncovered during the search. The proposal would require the Register of Copyright to establish a set of best practices to help in guiding users.

Upon publishing their works, users would also be required to provide attribution (as much as possible) to the owner in their new works. The proposals also request the Register of Copyrights to develop a symbol or notice that must be applied to the new creative work.

The House bill includes a controversial requirement that users of orphan works file a "Notice of Use" that would be archived by the Register of Copyrights. The notice would include a description of the work and how it would be used, the name of the proposed user, a summary of the search, any known information about the owner and/or author of the work, and a certification from the Copyright Office that a qualifying search was conducted in good faith. Users must file a notice under this provision or they will be subject to the full penalties for infringement.

The Dark Archive

This section has been called the "Dark Archive" provision. The American Library Association (ALA) expressed concern that compliance with this requirement will be "burdensome and potentially extremely costly.

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Orphan Works Proposals Moving Quickly through Congress
Settings

Settings

Typeface
Text size Smaller Larger
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.