House IP Subcommittee Chairman Smith will be introducing the "Orphan Works Act of 2006" at a markup session on Wednesday, May 24.
The full text of the bill is here: Download hr_orphan_works_act_of_2006.pdf
The legislation comes after more than a month of intense negotiations among interests from the library and museum community, publishers and other copyright owners that are users of orphan works, and the visual arts community. However, agreement and consensus were not to be had on certain elements of the bill -- most notably the “safe harbor” provisions that would deny any compensation for certain non-commercial uses unless the photographer can prove the infringer has earned proceeds directly attributable to the infringement. (Section 514(b)(1)(B)).
However, the bill does represent a significant improvement over the original proposal ...
Here are some of the changes that PPA, ASMP, PACA, Corbis and Getty were able to win at the negotiating table:
-A two-year delay in the effective date of the legislation, which should provide enough time to implement new databases and search engines to help users of works that are believed to be orphans find (and pay) the rightful owner of the work.
-A requirement that the Copyright Office conduct an inquiry into remedies for small copyright claims that must be completed within one year of passage of the bill.
-Allowing a photographer to recover full damages (including statutory damages and attorney fees if the work is timely registered) if the photographer can prove that an infringer failed to negotiate in good faith regarding reasonable compensation for the use of the "orphan" work.
-More specific guidance on what constitutes a "reasonably diligent search" including a review of materials housed at the Copyright Office, as well as the use of expert assistance and the use of resources that involve a fee when appropriate.
Leave a comment