june08c.indd


Andy Bridges W a s h i n g t o n  H o t l i n e  

Orphan works update 
Legislation has been introduced in both the 
U.S. Senate and House of Representatives 
that limits remedies in copyright infringe­
ment cases involving orphan works. 

While we strongly support legislation 
resolving the orphan works problem, we 
recommend the Senate version of the bill over 
the House version, which includes a “dark 
archive” provision, mandating that users fi le 
a notice to the U.S. Copyright Offi ce before 
using an orphan work. 

Brief history 
In 2005, the U.S. Copyright Offi ce conducted 
a study of the orphan works problem and 
concluded that Congress should enact legis­
lation to “free” these works, and a bill was 
introduced in the House of Representatives: 
the Orphan Works Act of 2006 (H.R. 5439). 
However, the 109th Congress ended before 
the full Judiciary Committee could consider 
the bill. 

On April 24, 2008, Rep. Howard Ber­
man (D­California) and Rep. Lamar Smith 
(R­Texas) introduced the Orphan Works Act 
of 2008 (H.R. 5889), cosponsored by Rep. 
Howard Coble (R­North Carolina) and Rep. 
John Conyers (D­Michigan). At the same time, 
Sen. Patrick Leahy (D­Vermont) and Sen. 
Orrin Hatch (R­Utah) introduced the Shawn 
Bentley Orphan Works Act of 2008 (S. 2913) 
in the Senate. 

On May 7, 2008, the House Subcommittee 
on Judiciary Courts, the Internet and Intellec­
tual Property approved orphan works legisla­
tion during a markup hearing and agreed to 
hold a meeting of stakeholders before moving 
to the full committee. 

The Senate Judiciary Committee has 
scheduled the markup on their version of the 
Orphan Works bill for May 15, 2008. 

Andy Bridges is communications director at ALA’s 
Washington Offi  ce, e-mail: abridges@alawash.org 

Analysis of orphan works legislation 
The library community thanks the House and 
Senate for introducing orphan works legisla­
tion to increase access to and use of works 
of great historic and cultural signifi cance. 
However, ALA prefers the Senate version of 
the bill over the House version. 

We do not support the House version’s 
additional provision: the “dark archive” 
requirement. Such a requirement would 
be excessively burdensome for users with 
little benefit to owners, will likely drive up 
compliance costs, and will require many in­
stitutions to consult legal counsel to review 
submissions prior to fi ling. (For example, 
these requirements will prove challenging, if 
not impossible, for librarians involved in mass 
digitization projects to meet). 

Additionally, we do not support either the 
House and Senate versions’ inclusion of the 
following troublesome provision: tasking the 
U.S. Copyright Office with establishing best 
practices on conducting searches to locate 
the rights holder. 

Update on PRO IP Act 
The bipartisan leadership of the House Judi­
ciary Committee introduced the Prioritizing 
Resources and Organization for Intellectual 
Property (PRO IP) Act of 2007. While the bill 
was unlikely to have a meaningful impact 
on IP infringement, one provision—section 
104, concerning copyright statutory dam­
ages—would have had an adverse impact 
on libraries. 

In response to the opposition to section 
104, Chairman Howard Berman has asked 
the Copyright Office to convene a roundtable 
in January 2008 to explore this provision in 
greater detail. LCA participated in the round­
table. After the roundtable, Berman decided 
to drop section 104, and the PRO IP Act was 
reported out of the subcommittee without the 
provision. The Senate has not yet addressed 
its version of the bill. 

June 2008  351 C&RL News 

mailto:abridges@alawash.org