Orphan works bill introduced: could give old creativity a new life

Texas Rep Lamar Smith has introduced a bill to clear the way for the re-use of "orphan works" whose authors are unknown or unlocatable. This wasn't a big problem until 1976, when the US changed its rules and did away with copyright registration, so that everyone who created anything got an automatic lifetime-plus-decades copyright on it, from the lowliest napkin doodle to the most trivial Usenet post. This created the present situation where, according to the Supreme Court in Eldred v Ashcroft, 98 percent of the works in copyright are orphan works, and liable to disappear long before their copyrights expire.

The bill looks like a pretty good compromise, but the devil is in the details — it requires petitioners to undertake "best practice" searches for missing copyright holders, but leaves those best practices up to the Copyright Office. Depending on the procedure established, this could either be the savior of American cultural history, or its downfall.

"The orphan works issue arises when someone who wants to use a copyrighted work cannot find the owner, no matter how diligently they search," said Chairman Smith. "The owner may have moved several times, died, or in the case of businesses, changed their name or gone bankrupt."

"For example, a local civic association may want to include old photographs from the local library archive in their monthly newsletter, but there are no identifying marks on the photo," explained Smith. "Under current law, the civic association must locate the owner to ask permission and in many cases may not be able to find the owner. Under the Orphan Works Act, they could follow guidelines posted by the Copyright Office as a show of due diligence to reduce the threat of litigation for simply doing the right thing."

The Orphan Works Act is the product of over 20 hours of negotiations among various interested parties and the Subcommittee on Courts, the Internet, and Intellectual Property, chaired by Smith. It incorporates language from a year-long study conducted by the United States Copyright Office.