Orphan works legislation is an issue of growing interest in Congress and among copyright owners and copyright users. Legislation was originally introduced in 2006, but did not advance to enactment. That legislation was entitled the Orphan Works Act of 2006, or H.R. 5439. The latest version of the legislation, the Orphan Works Act of 2008, is based upon the 2006 version with some significant changes.

First let’s define what an “orphan work” actually is, because a lot of the exaggerated information out there defines it either poorly or completely incorrectly.


Orphan works are copyrighted works whose owners cannot be located.

There is currently no statutory definition in the U.S. setting any standard for an orphan work and the proposed orphan works legislation would not create any statutory definition of the term "orphan works." The term “orphan works” is used to describe the policy issue and the legislation, but this definition would not be included in U.S. Code.

The orphan works problem is very real and it was created by a combination of factors.

For one copyright protection periods have been extended several times, currently your work is considered protected for your entire lifetime and for 70 years after your death and with an average term lasting well over a century that’s a lot of time to lose track of who might own something.

There is also the concern that a lot of the media that you are using to create many of these works won’t even outlast the duration of it's copyright in the first place.

We also have to realize that the actual copyright registration system is probably in need of an update or overhaul to make it more relevant to the realities of today.

These issues have to be addressed if we’re going to get a real solution to these problems.

Activity and debate on orphan works is not limited to the United States. A variety of countries have orphan work like provisions in effect today and other countries are considering orphan works provisions similar to the legislation in the United States.

Canada has an existing orphan works process already up and running. It is significantly different from recent discussions in the U.S. and the UK since it requires a formal application in advance of usage to the Copyright Board of Canada. The application is to obtain a limited license for uses that are pre-identified by the user. The Copyright Board of Canada determines an advance royalty to be paid by the user prior to use. The royalty is held in escrow by the Board. As of February 2008, there were 217 approved uses of orphan works.

In the United Kingdom the Gowers Review of Intellectual Property included a section on the orphan works issue. A report on orphan works was requested from the British Screen Advisory Council.

Finally the European Union High Level Expert Group on Digital Libraries presented an advisory report on copyright issues to the European Commission which included a section on orphan works.

Regardless of who is discussing it the orphan works issues tend to address the same types of concerns;

What type of system to use is a common and valid concern, Canada already has a use-by-use system while others are considering a blanket approach as an option. There are also concerns about whether or not to limit it to certain types of works only and whether or not a statement or notice should be part of the process and if so who the notice should be filed with.

The search for the owner itself is also a primary concern; a standard needs to be created for what is or is not a “reasonable search”. Also should the search be more intensive if the proposed use is commercial and also what sort of evidence needs to be compiled as proof of what you’ve done and should the evidence and a statement be filed with any specific agency.

As for the search itself we would have to determine if a database should be created in order to assist in the searching and whether or not the technology even exists to make such a search feasible rather than a nightmarish task. Another concern is whether the Copyright Office should maintain any proposed database or whether the private sector should be let in on it and if they are what sort of certification process should be required.

There is also debate over accreditation or recognition if you have some information about the owner but were still unable to locate them.

There is also room for debate as to whether or not to allow only for non-commercial uses, or whether to limit use in any other fashion or to provide prohibitions for certain types of ‘ potentially objectionable ’ uses and if so who should be the one setting the definitions for that.

Finally there are concerns as to whether or not advance compensation should be required as is done currently in Canada and if advance payment is required the act would have to determine who should get the money if no owner ever appears to claim it. And we can’t forget to determine who would set the amount of compensation, whether or not the owner should still have the ability to stop the use despite the payment, what to do if the orphan use violates an existing exclusive use and what would happen if the owner wanted more money than the user was willing to pay.

In short there are a lot of concerns and a lot of approaches and now that we’ve outlined them a bit lets talk about the bills which were just recently introduced into Congress.

pdf of S. 2913

S. 2913, the 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 closely based upon the language in the previous bill.

Like H.R. 5439 (The dead orphan works bill which caused the recent panic) 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.

pdf of H.R. 5889

H.R. 5889, the Orphan Works Act of 2008, was introduced by House Judiciary Committee Intellectual Property Subcommittee Chairman Berman of California, full Judiciary Committee Ranking Member Lamar Smith of Texas, and Intellectual Property Subcommittee Ranking Member Howard Coble of North Carolina on April 24, 2008. The language and approach of H.R. 5889 is based upon the language of the previous bill but differs more greatly than the Senate bill and addresses more of the concerns expressed by the creative community..

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 delayed effective date until the earlier of 2013 or the date on which the Register of Copyrights (currently Marybeth Peters) certifies two databases that can be used to search for pictorial, graphic, and sculptural works (not in the Senate version).

• A study of the copyright registration deposit system by the General Accountability Office (GAO).

• A requirement for users to file an advance notice of use with the Copyright Office (not in the Senate version).

• A requirement that uses of orphan works be identified with a special symbol to be created by the Copyright Office.

• Allowing a judge to award extra compensation if a work was registered (not in the Senate version).

Now if you’ve taken the time to actually read though this information you will see that the Orphan Works Act of 2008 does not propose to strip away every copyright which ever existed, it doesn’t legalize art theft and it does not seek to deny you any compensation or moneys for the use of your work.

It is, in my opinion, a fair and balanced approach to a current problem. It’s not a perfect system because the way copyright registration currently works doesn’t allow for the easy search of any owner and people will undoubtedly continue to find flaws and shortcomings in it as it begins the long trek through Congress once again.

However it is some of the better copyright legislation to wind its way through the halls of Congress over the last couple of decades and I personally do not have a problem with it as it’s language and intent is very much similar to Fair Use and I do not believe that the nightmare-like scenarios being pandered about as inescapable consequences will actually happen. If the bill continues on the course set by the House version there will most likely be enough legal grey area to scare off most people from attempting to use orphan works and in any event the bill still faces strong opposition from some quarters and I’m slightly doubtful on the bill’s chances on this second time through the legal system.

So we all can wait and watch and all that I ask is that you all take the time to at least educate yourself on the facts before you continue to disseminate fear-mongering interviews and articles amongst yourselves.

If you are going to choose to oppose or support anything base your position on the facts.