[License-discuss] Orphan Works: Summary of proposed 17 USC 514

Lawrence Rosen lrosen at rosenlaw.com
Thu Dec 3 18:56:23 UTC 2015

For those who don't want to read the entire report, below is a summary of draft U.S. copyright legislation, 17 U.S.C. Sec. 514, "Limitation on remedies in cases involving orphan works." 


The orphan works problem is referred to as "perhaps the single greatest impediment to creating new works." Anyone using an orphan work does so under a cloud, as there is always the possibility that the copyright owner could emerge after use has commenced and seek substantial infringement damages, an injunction, and/or attorneys' fees. A user's ability to seek permission or to negotiate licensing terms is compromised by the fact that, despite his or her diligent efforts, the user cannot identify or locate the copyright owner.


This legislation proposed by the U.S. Copyright Office can have significant impacts on both U.S. and worldwide copyright practices for literary works – including software and open source. 






*       Establish a limitation on remedies for copyright infringement for eligible users who can prove they have engaged in a good faith diligent search for the owner of a copyright and have been unable to identify or locate him or her; 


*       Define a diligent search as, at a minimum, searching Copyright Office records; searching sources of copyright authorship, ownership, and licensing; using technology tools; and using databases, all as reasonable and appropriate under the circumstances; 


*       Require the Copyright Office to maintain and update Recommended Practices for diligent searches for various categories of works, through public consultation with interested stakeholders; 


*       Permit a U.S. court, in its determination of whether a particular search qualifies under statute, to take into account a foreign jurisdiction's certification that a search was in good faith and sufficiently diligent, provided the foreign jurisdiction provides similar treatment to qualifying U.S. searches;


*       In addition to a diligent search, condition eligibility on a user filing of a Notice of Use with the Copyright Office, providing appropriate attribution, and engaging in negotiation for reasonable compensation with copyright owners who file a Notice of Claim of Infringement, among other requirements; 


*       Limit monetary relief for infringement of an orphan work by an eligible user to "reasonable compensation" – the amount that a willing buyer and a willing seller would have agreed upon immediately before the use began; 


*       Bar monetary relief for infringements of orphan works by eligible nonprofit educational institutions, museums, libraries, archives, or public broadcasters, for noncommercial educational, religious, or charitable purposes, provided the eligible entity promptly ceases the infringing use; 


*       Condition injunctive relief for infringement of orphan works by accounting for any harm the relief would cause the infringer due to its reliance on its eligibility for limitations on remedies; 


*       Limit the scope of injunctions against the infringement of an orphan work if it is combined with "significant original expression" into a new work, provided the infringer pays reasonable compensation for past and future uses and provides attribution; 


*       Allow a court to impose injunctive relief for the interpolation of an orphan work into a new derivative work, provided the harm to the owner-author is reputational in nature and not otherwise compensable; 


*       Condition the ability of state actors to enjoy limitations on injunctive relief upon their payment of any agreed-upon or court-ordered reasonable compensation; and 


*       Explicitly preserve the ability of users to assert fair use for uses of orphan works.


"Orphan Works and Mass Digitization": http://copyright.gov/orphan/reports/orphan-works2015.pdf

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