Orphan works are copyrighted works whose owners are difficult or impossible to identify and/or locate. In January 2006, it issued its Report on Orphan Works, which includes proposed legislative language to address the problem identified. This report surveys the findings of the Report on Orphan Works ("Report"), considers the Copyright Office's proposed amendment to the Copyright Act to address the issue, and analyzes introduced orphan works legislation in the 109 th and 110 th Congresses. The inaccessibility arises from the risk of liability that a user might incur for copyright infringement if and when a copyright owner subsequently appears:
First, the economic incentive to create may be undermined by the imposition of additional costs on subsequent creators wishing to use material from existing works. A primary goal, however, was to harmonize U.S. copyright law with international treaties and practice, where formalities are not a requirement for copyright protection. The Report on Orphan Works

By conducting stakeholder discussions and reviewing extensive submissions of comments, the U.S. The Report identifies many obstacles to identifying and locating copyright owners and assigns general categories of uses that appear to be most impacted by orphan works, namely, uses by "subsequent creators" who may create a derivative commercial work incorporating the orphan work; "large scale access uses" by institutions such as libraries that make available a wide body of work to the public; "enthusiast" uses by individuals who have an interest in a particular work, subject, or artist; and "private" uses, the most common illustration being someone who wishes to reproduce a family photograph or make a potentially infringing use of obsolete or orphaned computer software. The Copyright Office's Recommendation

The Report concludes that the orphan works problem, though difficult to describe and quantify, is indeed real. One who uses an orphan work would be required to have performed "a good faith, reasonably diligent search" to identify the copyright holder and provide "attribution to the author and copyright owner of the work, if possible and appropriate." When the infringement is made without commercial advantage and the user ceases infringement promptly after receiving notice thereof, no monetary relief would be available. Legislative Proposals

No legislation relating to orphan works has yet been introduced in the 111 th Congress as of the date of this report. 5439, 109th Congress, Second Session, the Orphan Works Act of 2006

The Orphan Works Act of 2006 incorporated many of the recommendations of the Copyright Office and was introduced and reported by the House Subcommittee on Courts, the Internet, and Intellectual Property in May 2006. This bill was later imbedded in an omnibus copyright bill, appearing as Title II of The Copyright Modernization Act of 2006 ( H.R. The bill provided significantly greater detail than the Copyright Office's proposed language, including setting forth specific standards to establish what is a "reasonably diligent search." 5889, 110th Congress, Second Session, the Orphan Works Act of 2008

The Orphan Works Act of 2008 resembled the 109 th Congress's orphan works legislation although it had substantial differences. This statutory "safe harbor" would have been available if the infringer is a nonprofit educational institution, library, or archives, or a public broadcasting entity, and the infringer proved by a preponderance of the evidence that:
The infringement was performed without any purpose of direct or indirect commercial advantage and for a charitable, religious, or educational purpose; and The infringer promptly ceased the infringing use after receiving notice of the claim for infringement and after conducting an expeditious good faith investigation of the claim. Exceptions to the Eligibility for Limitation on Monetary Remedies

H.R. S. 2913 also differed from H.R. However, the House took no action on S. 2913 , and H.R. 5889 did not make it out of the House Judiciary Committee, before the end of the 110 th Congress.
Orphan works are copyrighted works whose owners are difficult or impossible to identify and/or locate. Orphan works are perceived to be inaccessible because of the risk of infringement liability that a user might incur if and when a copyright owner subsequently appears. Consequently, many works that are, in fact, abandoned by owners are withheld from public view and circulation because of uncertainty about the owner and the risk of liability.
In 2006, at the request of Congress, the U.S. Copyright Office issued its Report on Orphan Works ("Report"). The goal of the Report was to elicit public comment and evaluate the extent of real or perceived problems that content users encounter in their efforts to use these works. The Report defines the problems it identified, and concludes that the problem is indeed real and should be addressed legislatively. It analyzes stakeholders' views on the issue and constraints on solutions imposed by the structure of U.S. copyright law and international copyright obligations. The Report sets forth a proposal to amend the Copyright Act by adding a provision that would limit liability for infringing use of orphan works when, prior to use, a user performs a reasonably diligent search for the copyright owner and provides attribution to the author and copyright owner, if possible. In some instances, when copyright infringement is made without commercial advantage and the user ceases infringement promptly after receiving notice thereof, no monetary relief would be available.
Adopting many of the suggestions of the Copyright Office, the Orphan Works Act of 2006 was introduced in the 109th Congress, second session (H.R. 5439). This bill was later incorporated into an omnibus copyright bill, appearing as Title II of The Copyright Modernization Act of 2006 (H.R. 6052). However, the bill was not addressed by the end of that Congress's adjournment. The bill would have implemented a limitation on monetary damage liability for specified infringement of orphan works, but took a more detailed approach than the Report's original proposals in establishing requirements for such liability limitations, such as articulating standards for a "reasonably diligent search." The bill would also have directed the Copyright Office to study and report on the implementation of the new orphan works amendment, and to study and make recommendations for a "small claims" procedure to address copyright infringement.
Legislation addressing the orphan works issue was reintroduced in the 110th Congress: the Orphan Works Act of 2008 (H.R. 5889) and the Shawn Bentley Orphan Works Act of 2008 (S. 2913). The two bills resembled the Orphan Works Act of 2006, although there were substantial differences from that earlier legislation and even between themselves. These additional or revised provisions were added in part to address concerns raised by photographers, illustrators, and other visual artists, as well as textile and home furnishing manufacturers. While S. 2913 passed the Senate, H.R. 5889 did not make it out of the House Judiciary Committee.
This report surveys the findings and conclusions in the U.S. Copyright Office's Report on Orphan Works and analyzes the orphan works bills that were considered by the 109th and 110th Congresses. No legislation relating to orphan works has yet been introduced in the 111th Congress as of the date of this report. However, the outcome of the Google Book Search class action lawsuit (and its pending settlement) may potentially affect future orphan works legislation.