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Sunday, 5 February 2006


LinuxElectrons reports that the US Copyright Office has completed a study on orphan works and has presented its findings to the Senate Judiciary Committee on January 31. Orphan works are works which, although still in copyright, have been authored by people who it is now impossible to find in order to seek their permission to reproduce the works, or carry out one of the acts that is reserved to the copyright owner. Following a wide-ranging consultation, the 207 page report describes the legal and factual situation pertaining to orphan works. In short, its findings are:

*The orphan works problem is real.
*The orphan works problem is elusive to quantify and describe comprehensively.
*Some orphan works situations may be addressed by existing copyright law, but many are not.
*Legislation is necessary to provide a meaningful solution to the orphan works problem as we know it today.
We recommend that the orphan works issue be addressed by an amendment to the Copyright Act’s remedies section. The specific language we recommend is provided at the end of this Report.

Oliver Twist - the ultimate orphan work

The recommended legislative provision reads as follows:


(a) Notwithstanding sections 502 through 505, where the infringer:
(1) prior to the commencement of the infringement, performed a good faith, reasonably diligent search to locate the owner of the infringed copyright and the infringer did not locate that owner, and
(2) throughout the course of the infringement, provided attribution to the author and copyright owner of the work, if possible and as appropriate under the circumstances, the remedies for the infringement shall be limited as set forth in subsection (b).



(A) no award for monetary damages (including actual damages, statutory damages, costs or attorney’s fees) shall be made other than an order requiring the infringer to pay reasonable compensation for the use of the infringed work; provided, however, that where the infringement is performed without any purpose of direct or indirect commercial advantage, such as through the sale of copies or phonorecords of the infringed work, and the infringer ceases the infringement expeditiously after receiving notice of the claim for infringement, no award of monetary relief shall be made.


(A) in the case where the infringer has prepared or commenced preparation of a derivative work that recasts, transforms or adapts the infringed work with a significant amount of the infringer’s expression, any injunctive or equitable relief granted by the court shall not restrain the infringer’s continued preparation and use of the derivative work, provided that the infringer makes payment of reasonable compensation to the copyright owner for such preparation and ongoing use and provides attribution to the author and copyright owner in a manner determined by the court as reasonable under the circumstances; and

(B) in all other cases, the court may impose injunctive relief to prevent or restrain the infringement in its entirety, but the relief shall to the extent practicable account for any harm that the relief would cause the infringer due to the infringer’s reliance on this section in making the infringing use.
(c) Nothing in this section shall affect rights, limitations or defenses to copyright infringement, including fair use, under this title.
(d) This section shall not apply to any infringement occurring after the date that is ten years from date of enactment of this Act.

The IPKat notes that the UK has a limited provision allowing orphan works to be used in the form of s.57 of the CDPA. However, unlike the proposed US provision, the UK provision only kicks in where it is safe to assume that the work is out of copyright, or at the otherwise infringing act is taking place at the end of 50 years after the author’s death. This leaves the UK in a situation in which it won’t be possible to use works which are still clearly in copyright, but for which it is impossible to track down the author.

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