ALA Washington D.C. Office of Government Relations- Issue Briefs
Orphan Works (H.R. 5889, S. 2913)
The collections in our libraries and archives include a significant number of orphan works. These so-called “orphans” are works whose copyright owners cannot be identified or found – and are not made publicly available by libraries for fear that rights holders will come forward, initiate legal action, and demand statutory damages of up to $150,000 a work!
This leaves libraries on the horns of a dilemma – and they can either:
- use and disseminate orphaned works at their peril (facing the risk of legal action that may require the use of the work be stopped immediately or face statutory damages);
- or leave the works in archives, where few people can access or use them.
In 2005, the U.S. Copyright Office conducted a study of the orphan works problem and concluded that Congress should enact legislation to “free” these works, and a bill was introduced in the House of Representatives: the Orphan Works Act of 2006 (H.R. 5439). However, the 109th Congress ended before the full Judiciary Committee could consider the bill.
On April 24, 2008, Rep. Howard Berman (D-CA) and Rep. Lamar Smith (R-TX) introduced the Orphan Works Act of 2008 (H.R. 5889), co-sponsored by Rep. Howard Coble (R-NC) and Rep. John Conyers (D-MI). At the same time, Sen. Patrick Leahy (D-VT) and Sen. Orrin Hatch (R-UT) introduced the Shawn Bentley Orphan
Works Act of 2008 (S. 2913) in the Senate.
On May 7, 2008, the House Subcommittee on Judiciary Courts, the Internet and Intellectual Property approved orphan works legislation during a markup hearing and agreed to hold a meeting of stakeholders before moving to the full committee. The Senate Judiciary Committee has scheduled the markup on their version of the Orphan Works bill for May 15, 2008.
The ALA supports the Senate version of the bill over the House version.
The PRO IP Act of 2007 (H.R. 4279)
The bipartisan leadership of the House Judiciary Committee introduced the Prioritizing Resources and Organization for Intellectual Property (PRO IP) Act of 2007. The bill’s objective was to: (1) improve intellectual property enforcement by increasing penalties for infringement; (2) provide rights-holders and government with more enforcement tools; and (3) reorganize the federal offices dealing with IP enforcement. While the bill was unlikely to have a meaningful impact on IP infringement, one provision concerning copyright statutory damages, however, would have had an adverse impact on libraries.
This controversial provision was section 104 of the bill as introduced, which would have allowed a rights-holder to recover a separate award of statutory damages for each work contained in an infringed compilation. Under current law, the rights-holder can recover only one award per compilation, regardless of the number of works it contains. For example, if a CD contains 10 tracks, current law permits a maximum statutory damages award of $150,000. Section 104, in contrast, would have permitted an award of $1,500,000.
The Library Copyright Alliance (LCA), which includes ALA, sent a letter to IP Subcommittee Chairman Howard Berman (CA) and Ranking Minority Member Howard Coble (NC), expressing concern with section 104. Specifically, the LCA letter stated that the provision would exacerbate the orphan works problem by significantly increasing libraries’ exposure to damages for using orphaned compilations.
In response to the opposition to section 104, Chairman Berman has asked the Copyright Office to convene a roundtable in January 2008 to explore this provision in greater detail. LCA participated in the roundtable. After the roundtable, Chairman Berman decided to drop section 104, and the PRO IP Act was reported out of the subcommittee without the provision.
On May 8, 2008, the House approved the PRO IP Act, which would establish a new copyright enforcement division with the Department of Justice and create a new position of a federal copyright enforcement “czar.” The Senate has not yet addressed its version of the bill.
Federal Research Public Access Act of 2006 (S. 2695)
In the 109th Congress, a Senate bill, the Federal Research Public Access Act of 2006 (S. 2695), would have required Internet access to articles reporting on federally funded research. We hope to see the bill reintroduced in the Senate as well as a House version introduced in the 110th Congress. Libraries strongly support this legislation and are continuing to work on its introduction and passage through the Alliance for Taxpayer Access (ATA) coalition. ALA has stepped up its involvement with ATA to demonstrate support for this initiative.
Section 108 Study Group
The final report of the Library of Congress Working Group on Section 108 was recently released. The report, transcripts of previous roundtables, issue papers, and written comments are available on the Study Group web site at www.loc.gov/section108.
The Working Group was charged with making recommendations to the Librarian of Congress for possible alterations to the copyright law that reflect current technologies. The group is named after the section of the U.S. Copyright Act that provides certain exceptions for libraries and archives. Several representatives of the library community were members of the Study Group. The library community as a whole, and ALA in particular, is analyzing the Working Group’s report.