I 
110TH CONGRESS 
2D SESSION 
H. R. 5889 
To provide a limitation on judicial remedies in copyright infringement cases 
involving orphan works. 
IN THE HOUSE OF REPRESENTATIVES 
APRIL 24, 2008 
Mr. BERMAN (for himself, Mr. SMITH of Texas, Mr. CONYERS, and Mr. 
COBLE) introduced the following bill; which was referred to the Com-
mittee on the Judiciary 
A BILL 
To provide a limitation on judicial remedies in copyright 
infringement cases involving orphan works. 
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled, 
SECTION 1. SHORT TITLE. 
This Act may be cited as the ‘‘Orphan Works Act 
of 2008’’. 
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: 
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‘‘§ 514. Limitation on remedies in cases involving or-
phan works 
‘‘(a) DEFINITIONS.—In this section, the following 
definitions shall apply: 
‘‘(1) MATERIALS AND STANDARDS.—The term 
‘materials and standards’ includes— 
‘‘(A) the records of the Copyright Office 
that are relevant to identifying and locating 
copyright owners; 
‘‘(B) sources of copyright ownership infor-
mation reasonably available to users, including 
private databases; 
‘‘(C) industry practices and guidelines of 
associations and organizations; 
‘‘(D) technology tools and expert assist-
ance, including resources for which a charge or 
subscription fee is imposed, to the extent that 
the use of such resources is reasonable for, and 
relevant to, the scope of the intended use; and 
‘‘(E) electronic databases, including data-
bases that are available to the public through 
the Internet, that allow for searches of copy-
righted works and for the copyright owners of 
works, including through text, sound, and 
image recognition tools. 
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‘‘(2) NOTICE OF CLAIM FOR INFRINGEMENT.— 
The term ‘notice of the claim for infringement’ 
means, with respect to a claim for copyright in-
fringement, a written notice that includes at a min-
imum the following: 
‘‘(A) The name of the owner of the in-
fringed copyright. 
‘‘(B) The title of the infringed work, any 
alternative titles of the infringed work known to 
the owner of the infringed copyright, or if the 
work has no title, a description in detail suffi-
cient to identify it. 
‘‘(C) An address and telephone number at 
which the owner of the infringed copyright may 
be contacted. 
‘‘(D) Information from which a reasonable 
person could conclude that the owner of the in-
fringed copyright’s claims of ownership and in-
fringement are valid. 
‘‘(3) OWNER OF THE INFRINGED COPYRIGHT.— 
The ‘owner of the infringed copyright’ is the legal 
owner of the exclusive right under section 106 that 
is applicable to the infringement in question, or any 
party with the authority to grant or license that 
right. 
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‘‘(4) REASONABLE COMPENSATION.—The term 
‘reasonable compensation’ means, with respect to a 
claim for infringement, the amount on which a will-
ing buyer and willing seller in the positions of the 
infringer and the owner of the infringed copyright 
would have agreed with respect to the infringing use 
of the work immediately before the infringement 
began. 
‘‘(b) CONDITIONS FOR ELIGIBILITY.— 
‘‘(1) CONDITIONS.— 
‘‘(A) IN GENERAL.—Notwithstanding sec-
tions 502 through 505, and subject to subpara-
graph (B), in a civil action brought under this 
title for infringement of copyright in a work, 
the remedies for infringement shall be limited 
in accordance with subsection (c) if the in-
fringer— 
‘‘(i) proves by a preponderance of the 
evidence that before the infringement 
began, the infringer, a person acting on be-
half of the infringer, or any person jointly 
and severally liable with the infringer for 
the infringement— 
‘‘(I) performed and documented 
a qualifying search, in good faith, for 
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the owner of the infringed copyright; 
and 
‘‘(II) was unable to locate the 
owner of the infringed copyright; 
‘‘(ii) before using the work, filed with 
the Register of Copyrights a Notice of Use 
under paragraph (3); 
‘‘(iii) provided attribution, in a man-
ner that is reasonable under the cir-
cumstances, to the owner of the infringed 
copyright, if such owner was known with a 
reasonable degree of certainty, based on in-
formation obtained in performing the 
qualifying search; 
‘‘(iv) included with the use of the in-
fringing work a symbol or other notice of 
the use of the infringing work, in a man-
ner prescribed by the Register of Copy-
rights; 
‘‘(v) asserts in the initial pleading to 
the civil action the right to claim such limi-
tations; 
‘‘(vi) consents to the jurisdiction of 
United States district court, or such court 
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‘‘(i) IN
GENERAL.—For purposes of 
paragraph (1)(A)(i)(I), a search is quali-
fying if the infringer undertakes a diligent 
effort to locate the owner of the infringed 
copyright. 
‘‘(ii) DETERMINATION
OF
DILIGENT 
EFFORT.—In 
determining 
whether 
a 
search is diligent under this subparagraph, 
a court shall consider whether— 
‘‘(I) the actions taken in per-
forming that search are reasonable 
and appropriate under the facts rel-
evant to that search, including wheth-
er the infringer took actions based on 
facts uncovered by the search itself; 
‘‘(II) the infringer employed the 
applicable best practices maintained 
by the Register of Copyrights under 
subparagraph (B); and 
‘‘(III) the infringer performed 
the search before using the work and 
at a time that was reasonably proxi-
mate to the commencement of the in-
fringement. 
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‘‘(iii) LACK OF IDENTIFYING INFOR-
MATION.—The fact that a particular copy 
or phonorecord lacks identifying informa-
tion pertaining to the owner of the in-
fringed copyright is not sufficient to meet 
the 
conditions 
under 
paragraph 
(1)(A)(i)(I). 
‘‘(B) INFORMATION TO GUIDE SEARCHES; 
BEST PRACTICES.— 
‘‘(i) STATEMENTS
OF
BEST
PRAC-
TICES.—The Register of Copyrights shall 
maintain and make available to the public, 
including through the Internet, current 
statements of best practices for conducting 
and documenting a search under this sub-
section. 
‘‘(ii) CONSIDERATION
OF
RELEVANT 
MATERIALS
AND
STANDARDS.—In main-
taining the statements of best practices re-
quired under clause (i), the Register of 
Copyrights shall, from time to time, con-
sider materials and standards that may be 
relevant to the requirements for a quali-
fying search under subparagraph (A). 
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‘‘(3) NOTICE OF USE ARCHIVE.—The Register 
of Copyrights shall create and maintain an archive 
to retain the Notice of Use filings under paragraph 
(1)(A)(i)(III). Such filings shall include— 
‘‘(A) the type of work being used, as listed 
in section 102(a) of this title; 
‘‘(B) a description of the work; 
‘‘(C) a summary of the search conducted 
under paragraph (1)(A)(i)(I); 
‘‘(D) the owner, author, recognized title, 
and other available identifying element of the 
work, to the extent the infringer knows such in-
formation with a reasonable degree of certainty; 
‘‘(E) a certification that the infringer per-
formed a qualifying search in good faith under 
this subsection to locate the owner of the in-
fringed copyright; and 
‘‘(F) the name of the infringer and how 
the work will be used. 
Notices of Use filings retained under the control of 
the Copyright Office shall be furnished only under 
the conditions specified by regulations of the Copy-
right Office. 
‘‘(4) PENALTY FOR FAILURE TO COMPLY.—If 
an infringer fails to comply with any requirement 
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under this subsection, the infringer is subject to all 
the remedies provided in section 502 through 505, 
subject to section 412. 
‘‘(c) LIMITATIONS ON REMEDIES.—The limitations 
on remedies in a civil action for infringement of a copy-
right to which this section applies are the following: 
‘‘(1) MONETARY RELIEF.— 
‘‘(A) GENERAL
RULE.—Subject to sub-
paragraph (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 to the legal or 
beneficial owner of the exclusive right under the 
infringed copyright for the use of the infringed 
work. 
‘‘(B) FURTHER
LIMITATIONS.—An order 
requiring the infringer to pay reasonable com-
pensation for the use of the infringed work may 
not be made under subparagraph (A) if the in-
fringer is a nonprofit educational institution, li-
brary, or archives, or a public broadcasting en-
tity (as defined in subsection (f) of section 118) 
and the infringer proves by a preponderance of 
the evidence that— 
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‘‘(i) the infringement was performed 
without any purpose of direct or indirect 
commercial advantage, 
‘‘(ii) the infringement was primarily 
educational, religious, or charitable in na-
ture, and 
‘‘(iii) after receiving notice of the 
claim for infringement, and after con-
ducting an expeditious good faith inves-
tigation of the claim, the infringer prompt-
ly ceased the infringement, 
except that if the legal or beneficial owner of 
the exclusive right under the infringed copy-
right proves, and the court finds, that the in-
fringer has earned proceeds directly attributable 
to the infringement, the portion of such pro-
ceeds so attributable may be awarded to such 
owner. 
‘‘(C) EFFECT OF REGISTRATION ON REA-
SONABLE
COMPENSATION.—If a work is reg-
istered, the court may, in determining reason-
able compensation under this paragraph, take 
into account the value, if any, added to the 
work by reason of such registration. 
‘‘(2) INJUNCTIVE RELIEF.— 
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‘‘(A) GENERAL
RULE.—Subject to sub-
paragraph (B), the court may impose injunctive 
relief to prevent or restrain any infringement 
alleged in the civil action. 
‘‘(B) EXCEPTION.—In a case in which the 
infringer has prepared or commenced prepara-
tion of a work that recasts, transforms, adapts, 
or integrates the infringed work with a signifi-
cant amount of the infringer’s original expres-
sion, any injunctive relief ordered by the 
court— 
‘‘(i) may not restrain the infringer’s 
continued preparation or use of that new 
work; 
‘‘(ii) shall require that the infringer 
pay reasonable compensation to the legal 
or beneficial owner of the exclusive right 
under the infringed copyright for the use 
of the infringed work; and 
‘‘(iii) shall require that the infringer 
provide attribution, in a manner that is 
reasonable under the circumstances, to the 
owner of the infringed copyright, if re-
quested by such owner. 
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‘‘(E) 
RIGHTS
AND
PRIVILEGES
NOT 
WAIVED.—No action taken by an infringer 
under subparagraph (C) shall be deemed to 
waive any right or privilege that, as a matter of 
law, protects the infringer from being subject to 
suit in the courts of the United States for an 
award of damages to the legal or beneficial 
owner of the exclusive right under the infringed 
copyright under section 106. 
‘‘(d) EXCLUSION FOR FIXATIONS IN OR ON USEFUL 
ARTICLES.—The limitations on monetary and injunctive 
relief under this section shall not be available to an in-
fringer for infringements resulting from fixation of a work 
in or on a useful article that is offered for sale or other 
distribution to the public. 
‘‘(e) PRESERVATION
OF OTHER RIGHTS, LIMITA-
TIONS, AND DEFENSES.—This section does not affect any 
right, limitation, or defense to copyright infringement, in-
cluding fair use, under this title. If another provision of 
this title provides for a statutory license that would permit 
the infringement contemplated by the infringer if the 
owner of the infringed copyright cannot be located, that 
provision applies instead of this section. 
‘‘(f) COPYRIGHT FOR DERIVATIVE WORKS AND COM-
PILATIONS.—Notwithstanding section 103(a), an infringer 
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who qualifies for the limitation on remedies afforded by 
this section with respect to the use of a copyrighted work 
shall not be denied copyright protection in a compilation 
or derivative work on the basis that such compilation or 
derivative work employs preexisting material that has been 
used unlawfully under this section.’’. 
(b) TECHNICAL AND CONFORMING AMENDMENT.— 
The table of sections for chapter 5 of title 17, United 
States Code, is amended by adding at the end the fol-
lowing: 
‘‘514. Limitation on remedies in cases involving orphan works.’’. 
SEC. 3. DATABASE OF PICTORIAL, GRAPHIC, AND SCULP-
TURAL WORKS. 
(a) ESTABLISHMENT OF DATABASE.— 
(1) IN GENERAL.—The Register of Copyrights 
shall undertake a certification process for the estab-
lishment of an electronic database to facilitate the 
search for pictorial, graphic, and sculptural works 
that are subject to copyright protection under title 
17, United States Code. 
(2) PROCESS
AND
STANDARDS
FOR
CERTIFI-
CATION.—The process and standards for certifi-
cation of the electronic database required under 
paragraph (1) shall be established by the Register of 
Copyrights, except that certification may not be 
granted if the electronic database does not contain— 
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(A) the name of all authors of the work, 
and contact information for any author if the 
information is readily available; 
(B) the name of the copyright owner if dif-
ferent from the author, and contact information 
of the copyright owner; 
(C) the title of the copyrighted work, if 
such work has a title; 
(D) with respect to a copyrighted work 
that includes a visual image, a visual image of 
the work, or, if such a visual image is not avail-
able, a description sufficient to identify the 
work; 
(E) one or more mechanisms that allow for 
the search and identification of a work by both 
text and image; and 
(F) security measures that reasonably pro-
tect against unauthorized access to, or copying 
of, the information and content of the electronic 
database. 
(b) PUBLIC AVAILABILITY.—The Register of Copy-
rights— 
(1) shall make available to the public through 
the Internet a list of all electronic databases that are 
certified in accordance with this section; and 
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(2) may include any database so certified in a 
statement of best practices established under section 
514(b)(5)(B) of title 17, United States Code. 
SEC. 4. EFFECTIVE DATE. 
(a) IN GENERAL.—With respect to works other than 
pictorial, graphic, and sculptural works, the amendments 
made by section 2 shall apply to infringements that com-
mence on or after January 1, 2009. 
(b) 
PICTORIAL, 
GRAPHIC, 
AND
SCULPTURAL 
WORKS.—With respect to pictorial, graphic, and sculp-
tural works, the amendments made by section 2 shall— 
(1) take effect on the earlier of— 
(A) the date on which the Copyright Office 
certifies under section 3 at least 2 separate and 
independent searchable, comprehensive, elec-
tronic databases, that allow for searches of 
copyrighted works that are pictorial, graphic, 
and sculptural works, and are available to the 
public through the Internet; or 
(B) January 1, 2013; and 
(2) apply to infringing uses that commence on 
or after that effective date. 
(c) PUBLICATION
IN
FEDERAL
REGISTER.—The 
Register of Copyrights shall publish the effective date de-
scribed in subsection (b)(1) in the Federal Register, to-
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gether with a notice that the amendments made by section 
2 take effect on that date with respect to pictorial, graph-
ic, and sculptural works. 
(d) DEFINITION.—In this section, the term ‘‘pic-
torial, graphic, and sculptural works’’ has the meaning 
given that term in section 101 of title 17, United States 
Code. 
SEC. 5. REPORT TO CONGRESS. 
Not later than December 12, 2014, the Register of 
Copyrights shall report to the Committee on the Judiciary 
of the Senate and the Committee on the Judiciary of the 
House of Representatives on the implementation and ef-
fects of the amendments made by section 2, including any 
recommendations for legislative changes that the Register 
considers appropriate. 
SEC. 6. STUDY ON REMEDIES FOR SMALL COPYRIGHT 
CLAIMS. 
(a) IN GENERAL.—The Register of Copyrights shall 
conduct a study with respect to remedies for copyright in-
fringement claims by an individual copyright owner or a 
related group of copyright owners seeking small amounts 
of monetary relief, including consideration of alternative 
means of resolving disputes currently heard in the United 
States district courts. The study shall cover the infringe-
ment claims to which section 514 of title 17, United States 
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Code, apply, and other infringement claims under such 
title 17. 
(b) PROCEDURES.—The Register of Copyrights shall 
publish notice of the study required under subsection (a), 
providing a period during which interested persons may 
submit comments on the study, and an opportunity for 
interested persons to participate in public roundtables on 
the study. The Register shall hold any such public 
roundtables at such times as the Register considers appro-
priate. 
(c) REPORT TO CONGRESS.—Not later than 2 years 
after the date of the enactment of this Act, the Register 
of Copyrights shall prepare and submit to the Committee 
on the Judiciary of the Senate and the Committee on the 
Judiciary of the House of Representatives a report on the 
study conducted under this section, including such admin-
istrative, regulatory, or legislative recommendations that 
the Register considers appropriate. 
SEC. 7. STUDY ON COPYRIGHT DEPOSITS. 
(a) IN GENERAL.—The Comptroller General of the 
United States shall conduct a study examining the func-
tion of the deposit requirement in the copyright registra-
tion system under section 408 of title 17, United States 
Code, including— 
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(1) the historical purpose of the deposit require-
ment; 
(2) the degree to which deposits are made avail-
able to the public currently; 
(3) the feasibility of making deposits, particu-
larly visual arts deposits, electronically searchable by 
the public for the purpose of locating copyright own-
ers; and 
(4) the impact any change in the deposit re-
quirement would have on the collection of the Li-
brary of Congress. 
(b) REPORT.—Not later than 2 years after the date 
of the enactment of this Act, the Comptroller General shall 
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 study conducted under this 
section, including such administrative, regulatory, or legis-
lative recommendations that the Register considers appro-
priate. 
Æ 
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