Orphan Works Update: Bill Passes Judiciary Committee and Awaits Consideration on the Senate Floor

After delaying consideration of S. 2913, the Senate Judiciary Committee finally took up and passed a bill that would reform copyright law relating to "Orphan Works." The bill, which passed the Judiciary Committee by voice vote on May 15, relates to those works that may be protected by copyright, but whose owners cannot be identified or located. These works may include writings, images, musical tracks, or videos.

Senator Patrick Leahy, the lead sponsor, says the legislation will help potential users of orphan works find the owners and consequently, help the owners receive compensation. The bill sets the rules for how potential users must conduct a good faith search for owners before they use a work. Leahy says this is not "a license to infringe." If it is determined that a user has not conducted a regulated search, he or she could be held liable for statutory damages amounting to as much as $150,000.

"More creative works will be used, contributing to our cultural and artistic heritage, and more creators will receive compensation for use of their work," said Leahy in a press release.

During its work on the bill, the Committee added changes that strengthened requirements on what constitutes a qualifying owner search. Also, S. 2913 specifically says that if a copyright owner emerges after the work is used, the user must pay reasonable compensation and stop using the content.

Senators Patrick Leahy and Orrin Hatch introduced the legislation on April 24 this year. It is uncertain when or if the bill will receive consideration on the Senate floor. The House has a companion bill, H.R. 5889, which is currently awaiting consideration in the House Judiciary Committee. On May 7, the House bill was reported favorably out of the Subcommittee on the Courts, Internet, and Intellectual Property.