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CAA Statement on Orphan-Works Legislation

posted by Christopher Howard — Oct 09, 2008

For several years, Congress has been considering legislation to address issues raised by orphan works. Orphan works are works that are still in copyright, but where the copyright holder cannot be found and the rights cleared. Most recently, in September 2008, the Senate passed S.2913, the Shawn Bentley Orphan Works Act of 2008. CAA has been supporting this legislation, as a boon for both CAA’s artist and scholar members.

CAA is the nation’s largest organization representing the visual-arts communities. With its wide-ranging membership, including artists, scholars, museums, and other visual-arts professionals, CAA has been involved in discussions on orphan-work legislation from the beginning. With the assistance of anecdotes from scores of its members CAA filed substantial comments with the US Copyright Office in March 2005, identifying circumstances in which current copyright law impairs the use of orphan works in artistic and scholarly works alike and proposing a legislative approach that would balance the legitimate interest of creators, copyright owners, and users. CAA also participated in roundtable discussions held by the Copyright Office. In January 2006, the Copyright Office issued a report that cited the CAA’s comments and recommended adoption of orphan-works legislation, including conditions that would appropriately balance the interests of contemporary artists and other copyright owners with the interests of users of orphan works.

From the time that such legislation was first introduced, in May 2006, to implement the recommendations of the Copyright Office and, throughout the 110th Congress, CAA has been working with other organizations—including museums, universities, libraries, and commercial publishers, as well as the Copyright Office—in crafting orphan-works legislation. The purpose of the legislation is to amend the copyright law to allow orphan works to be used without an undue risk to the user—of statutory damages or an injunction—assuming that the user conducted a diligent search for the copyright owner and properly attributed the work as an orphan work. At the same time, CAA, with its membership of artists, designers, and photographers, has taken full account of their concerns that orphan-works legislation, if enacted, would allow bad-actor copyright infringers to avoid copyright liability. In particular, CAA is aware of fears that artists whose works cannot easily be signed, or have other identifying information attached to them, might readily become orphaned and, in this way, be used unfairly and unscrupulously, without appropriate compensation and attribution.

CAA supports legislation that would require users of orphan works to conduct diligent searches to identify and locate copyright owners as a precondition of works becoming eligible for orphan-works treatment. The search requirements that CAA supports are detailed and meaningful, but they also are not unduly burdensome. They include searches of Copyright Office records and the use of other appropriate databases and other resources. The requirement that the user conduct a diligent search, with the parameters of such a search elaborated in the legislation itself, is intended to ensure that copyright owners would not be at risk from bad-faith searches. CAA also has been working hard to ensure that, should there ever be litigation surrounding the use of an orphan work, the burden would be on the user to demonstrate that his or her search was diligent. In addition, CAA supports legislation that would permit courts to pay heed to best practices for searches that would be crafted by professional organizations, such as CAA. If the legislation is enacted, then CAA will be uniquely well-suited to develop and promulgate guidelines on best practices for searches, given the wide range of interests of its members and the wide spectrum of copyrighted works that they create and use.

Finally, CAA encourages artists to consider the advantages of registering their works with the US Copyright Office. Under the legislation supported by CAA, in coalition with other visual-arts organizations, ordinarily, for a search of an orphan-work copyright owner to qualify as diligent, the user generally should search the Copyright Office’s registration records, as reasonable under the circumstances. By registering their works, CAA’s members will be better able to protect their creative property while allowing for appropriate and lawful use under the copyright law.