How would proposed orphan works legislation affect copyright?

congressCC0Orphan works are copyrighted works for which the copyright owner cannot be identified or contacted. Since 1976, the U.S. has not required registration for copyright protection, so works are automatically copyrighted from the moment they are fixed in a tangible medium (for instance when the shutter button is pressed). The duration of copyright has also been extended periodically, most recently in 1998, to the life of the author plus 70 years. These two circumstances result in a large number of orphan works.

Orphan works are a problem because if libraries, researchers or creators wish to incorporate these works into new creations, they cannot get permission to do so, and they do not want to run the risk of using them, because a rights-holder may appear after publication and file a lawsuit.

In 2006, the U.S. Copyright Office issued a report on orphan works suggesting legislation to address the issue. In 2006 and again in 2008, orphan works legislation was introduced in Congress. The 2008 bill would have placed limits on the remedies available in a copyright infringement suit (such as statutory damages and attorney’s fees), if the defendant fulfilled certain conditions, such as: performing a diligent search for the copyright owner and not finding them, identifying the copyright owner to the degree possible, agreeing to stop using the work if a copyright owner appeared and demanded it, and paying back royalties for commercial uses under certain circumstances. The legislation did not pass Congress. In June 2015, the U.S. Copyright Office published another report stating that the orphan works problem has grown in significance.

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