[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[H.R. 5439 Introduced in House (IH)]
109th CONGRESS
2d Session
H. R. 5439
To amend title 17, United States Code, to provide for limitation of
remedies in cases in which the copyright owner cannot be located, and
for other purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
May 22, 2006
Mr. Smith of Texas introduced the following bill; which was referred to
the Committee on the Judiciary
_______________________________________________________________________
A BILL
To amend title 17, United States Code, to provide for limitation of
remedies in cases in which the copyright owner cannot be located, and
for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Orphan Works Act of 2006''.
SEC. 2. LIMITATION ON REMEDIES IN CASES INVOLVING ORPHAN WORKS.
(a) Limitation on Remedies.--Chapter 5 of title 17, United States
Code, is amended by adding at the end the following new section:
``Sec. 514. Limitation on remedies in cases involving orphan works
``(a) Limitation on Remedies.--
``(1) Conditions.--Notwithstanding sections 502 through
505, in an action brought under this title for infringement of
copyright in a work, the remedies for infringement shall be
limited under subsection (b) if the infringer sustains the
burden of proving, and the court finds, that--
``(A) before the infringing use of the work began,
the infringer, a person acting on behalf of the
infringer, or any person jointly and severally liable
with the infringer for the infringement of the work--
``(i) performed and documented a reasonably
diligent search in good faith to locate the
owner of the infringed copyright; but
``(ii) was unable to locate the owner; and
``(B) the infringing use of the work provided
attribution, in a manner reasonable under the
circumstances, to the author and owner of the
copyright, if known with a reasonable degree of
certainty based on information obtained in performing
the reasonably diligent search.
``(2) Definitions; requirements for searches.--
``(A) Owner of infringed copyright.--For purposes
of paragraph (1), the `owner' of an infringed copyright
in a work is the legal or beneficial owner of, or any
party with authority to grant or license, an exclusive
right under section 106 applicable to the infringement.
``(B) Requirements for reasonably diligent
search.--(i) For purposes of paragraph (1), a search to
locate the owner of an infringed copyright in a work--
``(I) is `reasonably diligent' only if it
includes steps that are reasonable under the
circumstances to locate that owner in order to
obtain permission for the use of the work; and
``(II) is not `reasonably diligent' solely
by reference to the lack of identifying
information with respect to the copyright on
the copy or phonorecord of the work.
``(ii) The steps referred to in clause (i)(I) shall
ordinarily include, at a minimum, review of the
information maintained by the Register of Copyrights
under subparagraph (C).
``(iii) A reasonably diligent search includes the
use of reasonably available expert assistance and
reasonably available technology, which may include, if
reasonable under the circumstances, resources for which
a charge or subscription fee is imposed.
``(C) Information to guide searches.--The Register
of Copyrights shall receive, maintain, and make
available to the public, including through the
Internet, information from authoritative sources, such
as industry guidelines, statements of best practices,
and other relevant documents, that is designed to
assist users in conducting and documenting a reasonably
diligent search under this subsection. Such information
may include--
``(i) the records of the Copyright Office
that are relevant to identifying and locating
copyright owners;
``(ii) other sources of copyright ownership
information reasonably available to users;
``(iii) methods to identify copyright
ownership information associated with a work;
``(iv) sources of reasonably available
technology tools and reasonably available
expert assistance; and
``(v) best practices for documenting a
reasonably diligent search.
``(b) Limitations on Remedies.--The limitations on remedies in a
case to which subsection (a) applies are the following:
``(1) Monetary relief.--
``(A) General rule.--Subject to subparagraph (B),
an award for monetary relief (including actual damages,
statutory damages, costs, and attorney's fees) may not
be made, other than an order requiring the infringer to
pay reasonable compensation for the use of the
infringed work.
``(B) Exceptions.--(i) An order requiring the
infringer to pay reasonable compensation for the use of
the infringed work may not be made under subparagraph
(A) if--
``(I) the infringement is performed without
any purpose of direct or indirect commercial
advantage and primarily for a charitable,
religious, scholarly, or educational purpose,
and
``(II) the infringer ceases the
infringement expeditiously after receiving
notice of the claim for infringement,
unless the copyright owner proves, and the court finds,
that the infringer has earned proceeds directly
attributable to the infringement.
``(ii) If the infringer fails to negotiate in good
faith with the owner of the infringed work regarding
the amount of reasonable compensation for the use of
the infringed work, the court may award full costs,
including a reasonable attorney's fee, against the
infringer under section 505, subject to section 412.
``(2) Injunctive relief.--
``(A) General rule.--Subject to subparagraph (B),
the court may impose injunctive relief to prevent or
restrain the infringing use, except that, if the
infringer has met the requirements of subsection (a),
the relief shall, to the extent practicable, account
for any harm that the relief would cause the infringer
due to its reliance on having performed a reasonably
diligent search under subsection (a).
``(B) Special rule for new works.--In a case in
which the infringer recasts, transforms, adapts, or
integrates the infringed work with the infringer's
original expression in a new work of authorship, the
court may not, in granting injunctive relief, restrain
the infringer's continued preparation or use of that
new work, if the infringer--
``(i) pays reasonable compensation to the
owner of the infringed copyright for the use of
the infringed work; and
``(ii) provides attribution to the owner of
the infringed copyright in a manner that the
court determines is reasonable under the
circumstances.
``(C) Treatment of parties not subject to suit.--
The limitations on remedies under this paragraph shall
not be available to an infringer that asserts in an
action under section 501(b) that neither it nor its
representative acting in an official capacity is
subject to suit in Federal court for an award of
damages to the copyright owner under section 504,
unless the court finds that such infringer has--
``(i) complied with the requirements of
subsection (a) of this section;
``(ii) made a good faith offer of
compensation that was rejected by the copyright
owner; and
``(iii) affirmed in writing its willingness
to pay such compensation to the copyright owner
upon the determination by the court that such
compensation was reasonable under paragraph (3)
of this subsection.
``(D) Construction.--Nothing in subparagraph (C)
shall be deemed to authorize or require, and no action
taken pursuant to subparagraph (C) shall be deemed to
constitute, an award of damages by the court against
the infringer.
``(E) Rights and privileges not waived.--No action
taken by an infringer pursuant to subparagraph (C)
shall be deemed to waive any right or privilege that,
as a matter of law, protects such infringer from being
subject to suit in Federal court for an award of
damages to the copyright owner under section 504.
``(3) Reasonable compensation.--In establishing reasonable
compensation under paragraph (1) or (2), the owner of the
infringed copyright has the burden of establishing the amount
on which a reasonable willing buyer and a reasonable willing
seller in the positions of the owner and the infringer would
have agreed with respect to the infringing use of the work
immediately before the infringement began.
``(c) Preservation of Other Rights, Limitations, and Defense.--This
section does not affect any right, limitation, or defense to copyright
infringement, including fair use, under this title. If another
provision of this title provides for a statutory license when the
copyright owner cannot be located, that provision applies in lieu of
this section.
``(d) Copyright for Derivative Works.--Notwithstanding section
103(a), the infringing use of a work in accordance with this section
shall not limit or affect the copyright protection for a work that uses
the infringed work.''.
(b) Conforming Amendment.--The table of sections for chapter 5 of
title 17, United States Code, is amended by adding at the end the
following new item:
``514. Limitation on remedies in cases involving orphan works''.
(c) Effective Date.--The amendments made by this section shall
apply only to infringing uses that commence on or after June 1, 2008.
SEC. 3. REPORT TO CONGRESS ON AMENDMENTS.
The Register of Copyrights shall, not later than December 12, 2014,
report to the Committee on the Judiciary of the House of
Representatives and the Committee on the Judiciary of the Senate on the
implementation and effects of the amendments made by section 2,
including any recommendations for legislative changes that the Register
considers appropriate.
SEC. 4. INQUIRY ON REMEDIES FOR SMALL COPYRIGHT CLAIMS.
(a) In General.--The Register of Copyrights shall conduct an
inquiry with respect to remedies for copyright infringement claims
seeking limited amounts of monetary relief, including consideration of
alternatives to disputes currently heard in the United States district
courts. The inquiry shall cover infringement claims to which section
514 of title 17, United States Code (as added by section 2 of this
Act), apply, and other infringement claims under title 17, United
States Code.
(b) Procedures.--The Register of Copyrights shall publish notice of
the inquiry under subsection (a), providing a period during which
interested persons may submit comments on the inquiry, and an
opportunity for interested persons to participate in public roundtables
on the inquiry. The Register shall hold the public roundtables at such
times as the Register considers appropriate.
(c) Report to Congress.--The Register of Copyrights shall, not
later than 1 year after the date of the enactment of this Act, prepare
and submit to the Committee on the Judiciary of the House of
Representatives and the Committee on the Judiciary of the Senate a
report on the inquiry conducted under this section, including such
recommendations that the Register considers appropriate.
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