S. 2913 would provide a limitation on judicial remedies in copyright infringement cases involving orphan works.
Detailed Summary
Shawn Bentley Orphan Works Act of 2008 - Limits the remedies in a civil action brought for infringement of copyright in an orphan work, notwithstanding specified provisions and subject to exceptions, if the infringer meets certain requirements, including proving that: (1) the infringer performed and documented a reasonably diligent search in good faith to locate and identify the copyright owner before using the work, but was unable to locate and identify the owner; and (2) the infringing use of the work provided attribution to the owner of the copyright, if known. Requires a search to include methods that are reasonable and appropriate given the circumstances, including in some circumstances: (1) Copyright Office records that are not available through the Internet; and (2) resources for which a charge or subscription is imposed.
Limits monetary compensation to reasonable compensation for the use of the infringed work. Prohibits such compensation if the infringer is a nonprofit educational institution, museum, library, or archive, or a public broadcasting entity and if the infringer proves that: (1) the infringement is performed without any purpose of commercial advantage and is primarily educational, religious, or charitable in nature;and (2) the infringer ceases the infringement expeditiously after receiving notice of the claim for infringement. Allows injunctive relief to prevent or restrain infringement, subject to exception and limitation.
Directs the Register of Copyrights to: (1) undertake a process to certify that databases are available that facilitate searching for pictorial, graphic, and sculptural works protected by copyright; (2) report to the House and Senate judiciary committees on the implementation and effects of certain amendments made by this Act, including any recommendations for legislative changes; and (3) report to those committees on remedies for copyright infringement claims by an individual copyright owner or a related group of copyright owners seeking small amounts of monetary relief.
Directs the Comptroller General to report to such committees on the function of the deposit requirement in the copyright registration system.
Status of the Legislation
Latest Major Action: 9/27/2008: Referred to House committee. Status: Referred to the House Committee on the Judiciary.
Points in Favor
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Points Against
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Visitor Comments
MacNeill+Macintosh
May 19, 2008, 5:44pm (report abuse)This bill is a blatant rip-off of creative artist’s work and shame on Sen. Leahy of VT. for sponsoring this bill.
It places the burden of protecting all creative work, that can be found on the internet, upon the individual creator. Imagine discovering that a photo of your child, posted on your family website, is to be used in advertising by a major company, political group or organization that you despise. You will have no recourse to blocking this usage, or to any reinbursement because you did not pay to have this photo copyrighted with a registration agency. Now imagine you have to individually register each image to protect it. This is an invitation to steal and a violation of existing international copyright laws.
Please write your congresspeople and voice your opposition to this Orphan Work bill.
David
May 21, 2008, 6:05am (report abuse)see here for more information...
http://www.itwire.com/content/view/18308/53/
Josh
May 23, 2008, 11:28pm (report abuse)I support this bill. Fair Use is being destroyed by HR 4279 "The PRO-IP Act".
Michael
May 24, 2008, 12:15am (report abuse)You mean the Berne Convention? The treaty which allows no compensatory damages outside the country of origin, ANYWAY? That "International Copyright Law"? And also, there's nothing in this bill that negates Titles 16 and 17 of the USC, folks. In fact, reading the actual text of the bill, failing a "good faith" search entitles a victim of infringement "full compensatory damages" listed under Title 17. A "Good Faith" search does NOT consist of doing a 10 second Google search and tossing up your hands and saying "Oh well! Free art for me!" That's as absurd as the ludicrous "slippery slope" arguments bandied about in reference to stealing cars and "good faith" searches being on the same level. Balderdash.
Josh
May 24, 2008, 7:08pm (report abuse)Michael, the House and the RIAA is killing fair-use and the second amendment. Now the RIAA, MPAA, WGA, Anime companies, and game companies will now own everything we have even if we don't own a computer or anything that infringes copyright. This bill (S 2913) does not include personal material such as your family photos, home videos, etc. This bill only includes any material of a deceased artist or a defunct media company. I wouldn't have to worry about this bill and I encourage the House and Senate to pass and the president to sign this bill into law. Please support this Act and stop worrying.
Lisa
July 18, 2008, 10:20pm (report abuse)According the language of the bill an Orphan is any work without a creator's name clearly attached, whose owner cannot be found by searching the copyright office. How many parents do you know that register their photos? How many of us sign our photos before sharing on the web? And please do-tell how does image scrapping software impact all of this?
Dave
July 18, 2008, 10:23pm (report abuse)Doesn't it bother you that this bill was written by Shawn Bentley, Time Warner's VP of Intellectual Property?
Teresa
July 20, 2008, 2:49am (report abuse)Cost per average family:$0.02? Bullsh*t, wait until some non-profit owns you family photo with a 'prevent incest' campaign and find out that privacy laws (in the 19 states that have privacy law) only protect you from the 'unauthorized trade or commercial use of your likeness'!!
Erik
July 22, 2008, 11:36am (report abuse)For those who haven't read the entire bill, take a look at the link to the summary above.
"S. 2913 would limit the amount of damages that could be collected for infringement of a
copyright if the party using the copyrighted work had, among other things, performed a
diligent search to identify the owner but was unable to do so."
So the intention is to limit damages. But in the same summary they say...
"According to copyright experts, there have been very few lawsuits involving orphan works
in recent years, and the value of the awards in those suits has not been large."
So if the awards haven't been that large, then why regulate the amount?
I don't get it.
Lisa
July 22, 2008, 1:45pm (report abuse)Because the bill also states that if you have done this 'diligent' search in the commercial databases that will suddenly be allowed to exist without fear of infringing copyrights, then you will only have to pay a 'reasonable licensing' fee. So all at once this bill allows the databases that the likes of Time Warner and Google have been so hot for and it limits the artists rights to stop them. Anyone remember Lexis-Nexis?
Lisa
July 22, 2008, 2:08pm (report abuse)I'm sorry. That was very poorly worded. What I was trying to say is that this bill is really about allowing the massive commercial databases of artistic works that have been declared unconstitutional in cases like Lexus-Nexus. They are, as you can imagine, Hugely profitable as long as the Time Warners and the Google of the world can get away without having to pay the artist or so long as they can guarantee that they will only have to pay the equivalent of a 'reasonable fee'. This is one massive Corporate plunder of citizens rights.
Lisa
July 22, 2008, 11:31pm (report abuse)My mistake the case is officially known as: New York Times Co., INC et al. v. Tasini et al It can be found here:
http://www.law.cornell.edu/supct/html/00-201.ZS.html