S. 2913, the Shawn Bentley Orphan Works Act of 2008, was
introduced on April 24, 2008 by current Senate Judiciary
Committee Chairman Patrick Leahy of Vermont and former
Senate Judiciary Committee Chairman Orrin Hatch. The
language and approach of S. 2913 is based upon the 2006
language for which I had the privilege of being the lead
Congressional staffer responsible for its progress.
On May 15, 2008, the full Senate Judiciary Committee
voted to report the bill to the full
Senate after
adopting a manager's amendment that made several changes
to the legislation. This simply means that a majority of
the Senators on the Committee agreed with the bill and
believed that it was ready for a vote by all 100 U.S.
Senators. The full Senate vote could either be a
recorded vote in which each Senator votes yes or no,
resulting in a numerical vote (73-27 for example) or a
voice vote under unanimous consent procedures in which
no Senator objects to the bill's passage.
Like H.R. 5439 from 2006, the 2008
legislation allows for a limitation on remedies, i.e. no
statutory damages or attorneys fees, to be imposed against
the user of a copyrighted work if the following is true:
- The user undertook a qualifying search (called a reasonably diligent, good faith search in 2006) to locate the owner and could not find him or her
- The user identified the owner as much as possible when using the work (such as listing the initials of the photographer if they were on the back of the original print)
- With some exceptions for ongoing uses, stopping use of the work if the owner reappears and says “stop”
- The user acted in good faith in searching for and negotiating with the owner
- Paying back royalties for the use on a “willing seller, willing buyer” standard if the use was commercial in nature for certain categories of uses
Unlike H.R. 5439 from 2006, the 2008 legislation includes the following:
- A study of the copyright registration deposit system by the General Accountability Office (GAO)
- A requirement that uses of orphan works be identified with a special symbol to be created by the Copyright Office