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[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.
                                 <all>
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