Proposed changes to US laws on using ‘orphan works’

Two bills before the US Congress would limit the consequences of using works without permission, provided the copyright owner cannot be identified or found. The bills apply to works from other countries, including Australia, provided the use occurs in the United States.

Known as “orphan works” because the owner cannot be identified or located, the proposed changes to the law limit remedies for infringement of these works, where the person has:

• made genuine documented attempts to identify and contact the copyright owner, but was unable to locate him or her;
• attributed the copyright owner where he or she can be identified;
• used a notice with the orphan work indicating the work was used in reliance on the orphan work provisions; and
• negotiated and paid compensation, if contacted by the copyright owner.

One of the bills also requires the user to file a ‘notice of use’ at the US Copyright Office, describing the attempts to find the copyright owner and the ways in which the material is to be used.

In these circumstances, the copyright owner could claim reasonable compensation for the use, but not other forms of damages, nor would an injunction be available if the user had already begun creating a new work using some of the orphan work.

If you would like to find out more about the proposed changes and how they could affect you, the Australian Copyright Council has published a fact sheet available to download for free. Go to www.copyright.org.au