The Orphaned Works Act and You


This isn’t Schoolhouse Rock, but there is a bill coming through the floor of both the U.S. House and Senate that you might should be aware of.  It’s called the Orphan Works Act, a prospective law that hopes to help lawmakers and the copyright office figure out what to do with works when the originator cannot be found.

For a quick run down of what the bill implies, we’ll consult Open Congress:

“This bill would limit the amount of damages a copyright holder could collect from an infringer if the infringer performed a diligent search for the copyright holder before using their work. The goal of the legislation is to free up for reuse copyrighted works whose holders cannot be found. It would also set up a process for the Copyright Office to certify commercially-produced visual registries to help people locate the holder of a copyright and prevent the orphaning of works in the future.”

The potential law has been somewhat controversial, given the implications that it poses upon the online current state of affairs when Average Joes post photos and videos online every day.  The current text of the bill(s) require that those seeking to use potentially orphaned works have to only make a “reasonable” effort in order to find the original authors of the work.  No specific requirement is ever given as to what would be definable as such, which has some commentators worried that such a void will only be filled by future litigation.

So what does this mean to you?  Imagine for example, that you’ve taken an awesome photo.  A friend asks you for a copy of it, a request that you happily oblige to.  That friend then posts the photo to an off kilter site such as Geocities in order to place it on their MySpace page.  Months or perhaps years go by, and the photo is saved and redistributed by various means.  You might later find that the killer photo you’d taken three or four years ago is now being used by some greasy start up as a basis for their website or print promotion.  They’d be making profit off of your work, and if they could word their reasoning well enough to conclude that they made a “reasonable effort” to contact you, you’d have very basis for legal recourse.  One bill calls for “fair” compensation, but it doesn’t really define who would eventually decide what that constitutes.  This was discussed in length in This Week In Tech 144 if you’d like to hear individuals vastly more qualified than me comment on the issue.

This is only one possible scenario.  The various means for posting material online only furthers the eventuality of others, all of which could find you having material mysteriously and quasi-legally claimed by others.  So what can you do for now other than the cliched approach of contacting your congress person?  Take care in what you post online and make sure that its properly attributed.  A good example of great attribution is through the use of Creative Commons.  Make a practice of it, because without placing your virtual John Hancock on your work, you may find yourself down crap creek later on if this bill passes.

Edit: To follow up, I was contacted by Guy Mason of University of Denver and Know To Compete on the issue. I was incorrect in stating that there’s no recourse for possible infringement as described in the bill.  After further inspection, there is some ambiguous language pertaining to “fair” compensation.  Though as was said in last week’s TWiT with Leo Laporte, it’s problematic as to who defines that.  I’ve amended that part of my post above for ease of the read.

Thanks again to Guy for the clarification.  Who actually had totally incidentally and coincidentally used the same title for what is a more qualified explanation of the issue than mine.  And my apologies for accidentally deleting your comment, I’m still grasping with the new WordPress version that I’ve not yet spent a lot of time with.


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