Shawn Bentley Orphan Works Act of 2008

Floor Speech

SHAWN BENTLEY ORPHAN WORKS ACT OF 2008 -- (Senate - September 26, 2008)

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Mr. HATCH. Mr. President, I rise today to express my continued support for the Shawn Bentley Orphan Works Act of 2008, S. 2913, which I introduced with Senate Judiciary Committee chairman Patrick Leahy. This bill represents years of hard work and collaboration by the Senate, industry stakeholders, and U.S. Copyright Office officials. Passing S. 2913 is long overdue.

I want to thank Chairman Leahy for naming S. 2913 as the Shawn Bentley Orphan Works Act of 2008. It honors my long-time staffer and former colleague, Shawn Bentley. As many of you may remember, Shawn worked for the Judiciary Committee for a decade and worked on several important pieces of landmark intellectual property legislation. In fact, he initiated what we have now introduced as an orphan works bill. Many in this body were greatly saddened by Shawn's untimely death at 41. He was a one-of-a-kind individual. I believe this bill is a fitting way to acknowledge his continuing contributions to intellectual property law.

Countless artistic creations around the country are effectively locked away in a proverbial attic and unavailable for the general public to enjoy because the owner of the copyright for the work is unknown. These are generally referred to as orphan works.

Unfortunately, it is not always easy to identify an owner of a copyrighted work, and in many cases, information about the copyright holder is not publicly known. To make matters worse, many are discouraged from using these works for fear of being sued should the owner eventually step forward.

Many libraries, museums, State and local historical societies, and archives across the country that have significant amounts of orphan works, which are not currently available publicly.

Think of the new educational opportunities that will be opened to students, scholars, and the public alike when these works become accessible. The potential for learning, scholarship, and enjoyment of the works of previous generations are unlimited.

Without doubt, passage of S. 2913 addresses the orphan works problem.

Yesterday, Marybeth Peters, Register of the Copyrights, wrote the following about the importance of orphan works legislation:

The legislation is sensible: it would ease the orphan problem by reducing, but not eliminating, the exposure of good faith users. But there are clear conditions designed to protect copyright owners. A user must take all reasonable steps, employ all reasonable technology, and execute the applicable search practices to be submitted to the Copyright Office by authors, associations, and other experts.

The user must meet other hurdles, including attaching an orphan symbol to the use, to increase transparency and the possibility that an owner may emerge. If an owner does emerge, the user must pay `reasonable compensation' or face full liability. Reasonable compensation will be mutually agreed by the owner and the user or, failing that, be decided by a court; but it must also reflect objective market values for the work and the use. This framework would facilitate projects that are global (think rare text in the hands of a book publisher) as well as local (think family portraits in the hands of a photo finisher), while preserving the purpose and potential of copyright law. It would not inject orphan works prematurely into the public domain, create an automatic exception for all uses, or create a permanent class of orphan works. Nor would it minimize the value of any one orphan work by mandating a government license and statutory rate.

Ms. Peters continues by stating:

Some critics believe that the legislation is unfair because it will deprive copyright owners of injunctive relief, statutory damages, and actual damages. I do not agree.

Let me repeat, The Register of Copyrights does not believe the legislation is unfair, or that it will deprive copyright owners of injunctive relief, statutory damages, and actual damages.

With 43 years of experience working in the Copyright Office, 14 of them as the Register, I trust that Ms. Peters knows a few things about copyright law. And I want to take this opportunity to thank her and her staff and the many other stakeholders for their tremendous assistance in crafting this important legislation.

I also want to thank my counsel Matt Sandgren and Aaron Cooper, Senator Leahy's counsel, for their perseverance and hard work on this initiative.

In my view, a solution to the orphan works problem is achievable and the pending legislation is both fair and responsible. I urge my colleagues to pass S. 2913 without further delay.

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