New Legislation in US Congress Would Allow Orphan Works Use in Films

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Mon, 05/12/2008 - 20:00 -- Nick Dager

The Orphan Works Act of 2008 under consideration in the US Congress would allow filmmakers and other creators to use orphan works that have been languishing because the copyright owner no longer exists or cannot be found. The bill is officially designated S. 2913 the Shawn Bentley Orphan Works Act of 2008 and H.R. 5889. The Independent Feature Project and the National Alliance for Media Arts and Culture are both supporting the measure. On behalf of IFP and NAMAC we are delighted by the introduction of these bills says Milton Tabbot senior director of programming at IFP the nation's oldest organization of independent filmmakers. Orphan works legislation has been in the making for several years. We are grateful for the tremendous work Congress and the Copyright Office have done in bringing this issue to light and working toward positive changes for filmmakers. As both copyright owners and as creators balanced orphan works reform is vitally important to us. The House of Representatives and Senate proposed separate bills with similar frameworks that will allow the use of orphan works while balancing the interests of copyright holders by limiting the judicial remedies in copyright infringement cases involving orphan works. Currently filmmakers who encounter orphaned works cannot find an owner to license from and are thus constrained from using such works for fear of an injunction against the film or retroactive exorbitant fees. Even if the filmmaker is ready to take the risk distributors and insurers may not be. In rare cases the owner may exist but most of the time the owner is long gone. Yet the work cannot be used and the filmmaker's vision is stymied. Orphan works reform will solve this difficult problem by ensuring that filmmakers are not crippled by the inability to find absentee copyright owners. Under the House and Senate bills a filmmaker or other user is required to diligently search for the owner of a work. If no owner is found the orphaned material may be used. In the rare case that the copyright owner shows up later damages are limited to a reasonable license fee calculated to reflect what a user would have paid had the owner been found in the user's original search. By eliminating the risk of excessive damages and catastrophic injunctions this bill would make it much easier for filmmakers distributors and insurers to move forward and use orphaned works while surfacing owners would receive reasonable compensation for their work. IFP and NAMAC look forward to working further with the committees other organizations and their counsel at the USC Intellectual Property and Technology Law Clinic and the Stanford Cyberlaw Clinic to ensure that the final bills solve the important problem of orphan works through balanced clear reform says Tabbot. Independent Feature Project National Alliance for Media Arts and Culture