Copyright Office Recommends Congress Consider Updated Version of 2008 Orphan Works Bills

The U.S. Copyright Office recommended draft legislation in a report released Thursday that included an updated version of the failed Shawn Bentley Orphan Works Act of 2008, which would have imposed new burdens of proof on an infringing party in copyright infringement lawsuits involving orphan works to avoid legal penalties. Those burdens would include showing that the infringing party conducted a “good faith” search to locate the copyright owner and failed to locate that entity, as well as prove that the infringing use of the copyrighted material cited the copyright owner’s identity, if it was available. Register of Copyrights Maria Pallante backed creating a framework for the use of orphan works during a late March House Judiciary Committee hearing on the committee’s Copyright Act review (see 1504290058). Several House Judiciary leaders in the past expressed interest in reviewing the orphan works issue as part of the Copyright Act review (see report in the April 3, 2014, issue). The CO report also recommended the U.S. take a more incremental approach to mass digitization that would allow the U.S. to get additional experience with an extended collective licensing framework that mirrors those used abroad. The CO recommended implementing a pilot program that would allow users to digitize their works and provide access for educational purposes under a joint agreement with user representatives. The CO said it's also issuing a notice of inquiry seeking public comment on the scope and administration of the proposed program.