Berman Statement on Orphan Works

by Honorable Howard L. Berman, Ranking Member of the House Subcommittee on the Courts, the Internet and Intellectual Property

The following quotes are from the statement of the Honorable Howard L. Berman (D-CA) Ranking Member of the House Subcommittee on the Courts, the Internet and Intellectual Property. They were made May 23, 2006, during the Mark-up of H.R.5439, the "Orphan Works Act of 2006.”

"This bill incorporates many solutions to issues I raised at the hearing. Since that hearing the parties have worked diligently to reach consensus on many of the provisions of this legislation. However, there is yet more work to be done. I still share many of the concerns raised by the visual arts community and hope I can work with the Chairman before Full Committee mark-up to address them further.

"Many of the problems experienced by the visual arts community don't specifically concern orphan works but relate in general, to how the copyright system accommodates their art. Unfortunately, the overlay of the orphan works provision, on top of the current copyright scheme, exacerbates the problem. They worry that many of their works will end up as 'orphan works,' and argue this bill effectively removes their 'hammer' to prevent infringement...

"It is said that 'A picture is worth a thousand words.' The question here however, is how much it is worth in dollars. There remain a number of issues to address where the copyright owner of an orphan work resurfaces - for example, providing enough flexibility in determinations of reasonable compensation, and the necessary level of creativity in the new work to avoid an injunction. An especially important issue is the 'safe harbor' against monetary relief. For uses within this zone, a resurfacing copyright owner can claim no monetary relief whatsoever. We need to make sure that this zone is defined clearly and narrowly so that effective copyright protection is not forfeited...

"Current available picture matching technology is still in its infancy. If one of the motivations of this legislation is to facilitate market development of a database for visual arts - the effective date should correlate to a time where a database could realistically be functional.

"Furthermore, if the Copyright Office is the first stop of any reasonable diligent search - they should be armed with user-friendly search capability. It is time for the Copyright Office to move into the 21st Century.

For the full text of Rep. Berman’s statement, go to: http://www.house.gov/apps/list/speech/ca28_berman/orphan_works_hearing.html

Derivative Abuse

The Orphan Works bill contains a terrible new provision that gives an infringer exclusive rights to the entirety of an orphaned work if the infringer uses that work in a “derivative work.” A derivative work is one made by incorporating the work of others.

House negotiators have removed the requirement that infringed art be used in a derivative that contains substantial original expression. This means an infringer could now simply crop or desaturate your work, then use it again with complete immunity from prosecution. Here’s how the law would change:

Under current copyright law, you have exclusive rights to the original work you create. This includes the right to prepare new, derivative works from your old works, or to authorize (or refuse to authorize) others to do so. If someone creates a derivative work by infringing yours, current law doesn’t entitle them to copyright protection. Here’s what the current law says:

103(a) The subject matter of copyright as specified by section 102 includes compilations and derivative works, but protection for a work employing preexisting material in which copyright subsists does not extend to any part of the work in which such material has been used unlawfully.
http://straylight.law.cornell.edu/uscode/html/uscode17/usc_sec_17_00000103----000-.html#a

But under the Orphan Works amendment, an infringer could now confiscate this exclusive right - not by creating a substantially new work — but simply by infringing yours. The infringer would receive full copyright protection. Here’s what the bill says:

“(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.’’ http://www.illustratorspartnership.org/01_topics/article.php?searchterm=00214

This measure will have far reaching implications. For example, it will undermine your ability to negotiate exclusive rights with clients —particularly buyouts for advertising or institutional clients - because neither party in a business transaction can guarantee exclusivity.

It will also let opportunists capture the full rights to existing work. Stockhouses, for example could harvest “orphan” works, modify the work slightly and claim it as their own. These “derivative works” would then become the wholly-owned, fully-protected copyrighted work of the stockhouse.

And free culture advocates could now appropriate orphaned work and embed it with the viral Creative Commons share-alike license. See Orphaned Art and a Copyright Virus, http://www.illustratorspartnership.org/01_topics/article.php?searchterm=00190

This provision has been expanded from the original Copyright Office proposal. It was added during closed door negotiations. Put it at the head of your list of things that are wrong with this entire Orphan Works project.

— Brad Holland and Cynthia Turner, for the Board of the Illustrators’ Partnership

To read H.R. 5439 - The Orphan Works Act of 2006, go to http://thomas.loc.gov

This may be republished, posted or forwarded in its entirety to any interested party.

Assault on Copyright

First the good news. It appears that the Orphan Works bill won’t let someone infringe your work just by saying he couldn’t find copyright information on the work itself. He’ll have to say he’s also made a good faith effort to find you through other means. The bad news is you can either take his word that he’s done so or you can take him to Federal court.

We haven’t had time to get a professional analysis of the Orphan Works bill yet, but on first reading - and in spite of a few beneficial changes - it still appears to be not an orphan works bill at all, but a frontal assault on copyright, “the dawn of a new, user-focused era in copyright legislation” as one giddy legal scholar wrote yesterday.

The most striking aspect of the official bill remains its casual no-fault attitude toward infringement. The language treats copyright abuse as just another form of copyright usage:

“...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... [etc.]” (our emphasis).

Try substituting “thief” or “theft” for “infringer” and “infringement” and it’s clear what a stunning reversal of common sense this bill embodies toward the treatment of private property.

The second striking aspect is the bill's unhealthy reliance on the courts to resolve the abuses the bill itself will generate. We make our living licensing the rights to our work. Our time is already consumed adjusting to short deadlines and shifting business conditions. We shouldn’t have to make traipsing to Federal court a routine part of our business experience just to get paid for the use of our work.

Then there’s the matter-of-fact assumption that good faith infringement can be easily and reliably established, either in or out of a courtroom. It can’t. Yet this bill will make it the touchstone for establishing whether someone has the unauthorized right to use our work.

With all due respect, this bill needs to be more than just changed. It needs to be opposed. Other countries are finding ways to solve the orphan works problem without a wholesale weakening of creators’ rights. Why can’t we?

-Brad Holland and Cynthia Turner, for the Board of the Illustrators’ Partnership

This may be republished, posted or forwarded in its entirety to any interested party.

Infringer’s Bill of Rights

Review the Orphan Works Bill and try substituting “thief” or “theft” for “infringer” and “infringement “ and it’s clear what a stunning reversal of common sense this bill embodies toward the treatment of private property:

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

Mr. SMITH of Texas introduced the following bill; which was referred to the
Committee on ____________________________

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:

Ҥ 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 theft of copyright in a work, the remedies for theft shall be limited under subsection (b) if the thief sustains the burden of proving, and the court finds, that—

“(A) before the theft of the work began, the thief, a person acting on behalf of the thief, or any person jointly and severally liable with the thief for the theft of the work—

“(i) performed and documented a reasonably diligent search in good faith to locate the owner of the stolen copyright; but

“(ii) was unable to locate the owner; and

“(§) the stolen 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 STOLEN COPYRIGHT.—
For purposes of paragraph (1), the ‘owner’ of a stolen 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 theft.

“(§) REQUIREMENTS FOR REASONABLY DILIGENT SEARCH.—(i) For purposes of paragraph (1), a search to locate the owner of a stolen 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 thief to pay reasonable compensation for the use of the stolen work.

“(B) EXCEPTIONS.—(i) An order requiring the thief to pay reasonable compensation for the use of the stolen work may not be made under subparagraph (A) if—

“(I) the theft is performed without any purpose of direct or indirect
commercial advantage and primarily for a charitable, religious, scholarly, or educational purpose, and

“(II) the thief ceases the theft expeditiously after receiving notice of the claim for theft, unless the copyright owner proves, and the court finds, that the thief has earned proceeds directly attributable to the theft.

“(ii) If the thief fails to negotiate in good faith with the owner of the stolen work regarding the amount of reasonable compensation for the use of the stolen work, the court may award full costs, including a reasonable attorney’s fee, against the thief 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 stolen use, except that, if the thief has met the requirements of subsection (a), the relief shall, to the extent practicable, account for any harm that the relief would cause the thief due to its reliance on having performed a reasonably diligent search under subsection (a).

“(§) SPECIAL RULE FOR NEW WORKS.—In a case in which the thief recasts, transforms, adapts, or integrates the stolen work with the thief’s original expression in a new work of authorship, the court may not, in granting injunctive relief, restrain the thief’s continued preparation or use of that new work, if the thief—

“(i) pays reasonable compensation to the owner of the stolen copyright for the use of the stolen work; and

“(ii) provides attribution to the owner of the stolen 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 a thief 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 thief 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 thief.

“(E) RIGHTS AND PRIVILEGES NOT WAIVED.—No action taken by a thief pursuant to subparagraph (C) shall be deemed to waive any right or privilege that, as a matter of law, protects such thief 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 stolen 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 thief would have agreed with respect to the stolen use of the work immediately before the theft began.

“(c) PRESERVATION OF OTHER RIGHTS, LIMITATIONS, AND DEFENSE.—This section does not affect any right, limitation, or defense to copyright theft, 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 stolen use of a work in accordance with this section shall not limit or affect the copyright protection for a work that uses the stolen 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 stolen 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 theft 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 theft claims to which section 514 of title 17, United States Code (as added by section 2 of this Act), apply, and other theft 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.


To read the Orphan Works Bill: http://www.illustratorspartnership.org/01_topics/article.php?searchterm=00214

This may be republished, posted or forwarded in its entirety to any interested party.

Orphan Works Bill Released in House

After nearly three months of closed-door negotiations, the House Subcommittee on Courts, the Internet and Intellectual Property has drafted an Orphan Works bill.

It incorporates a number of changes that will improve the draft language originally proposed by the Copyright Office. These changes will limit the damage the original proposal would have caused, but there are still major areas that will put artists’ and photographers’ work at risk.

Over the next several days, we’ll try to summarize where we stand and we’ll call on you again to join us and other organizations in a coordinated letter writing campaign to your House representatives. Your letters have made a big difference so far. We need to persevere. Thanks as always for your patience and support.

The Board of the Illustrators’ Partnership

Bill Text – “The Orphan Works Act of 2006”

by Rep. Lamar Smith, et al

109TH CONGRESS 2D SESSION H. R. ____ 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 Mr. SMITH of Texas introduced the following bill; which was referred to the Committee on ____________________________ 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. 1 Be it enacted by the Senate and House of Representa- 2 tives of the United States of America in Congress assembled, 3 SECTION 1. SHORT TITLE. 4 This Act may be cited as the “Orphan Works Act 5 of 2006’’. Page 2 1 SEC. 2. LIMITATION ON REMEDIES IN CASES INVOLVING 2 ORPHAN WORKS. 3 (a) LIMITATION ON REMEDIES.—Chapter 5 of title 4 17, United States Code, is amended by adding at the end 5 the following new section: 6 “ß 514. Limitation on remedies in cases involving or- 7 phan works 8 “(a) LIMITATION ON REMEDIES.— 9 “(1) CONDITIONS.—Notwithstanding sections 10 502 through 505, in an action brought under this 11 title for infringement of copyright in a work, the 12 remedies for infringement shall be limited under 13 subsection (b) if the infringer sustains the burden of 14 proving, and the court finds, that— 15 “(A) before the infringing use of the work 16 began, the infringer, a person acting on behalf 17 of the infringer, or any person jointly and sev- 18 erally liable with the infringer for the infringe- 19 ment of the work— 20 “(i) performed and documented a rea- 21 sonably diligent search in good faith to lo- 22 cate the owner of the infringed copyright; 23 but 24 “(ii) was unable to locate the owner; 25 and Page 3 1 “(B) the infringing use of the work pro- 2 vided attribution, in a manner reasonable under 3 the circumstances, to the author and owner of 4 the copyright, if known with a reasonable de- 5 gree of certainty based on information obtained 6 in performing the reasonably diligent search. 7 “(2) DEFINITIONS; REQUIREMENTS FOR 8 SEARCHES.— 9 “(A) OWNER OF INFRINGED COPYRIGHT.— 10 For purposes of paragraph (1), the ‘owner’ of 11 an infringed copyright in a work is the legal or 12 beneficial owner of, or any party with authority 13 to grant or license, an exclusive right under sec- 14 tion 106 applicable to the infringement. 15 “(B) REQUIREMENTS FOR REASONABLY 16 DILIGENT SEARCH.—(i) For purposes of para- 17 graph (1), a search to locate the owner of an 18 infringed copyright in a work— 19 “(I) is ‘reasonably diligent’ only if it 20 includes steps that are reasonable under 21 the circumstances to locate that owner in 22 order to obtain permission for the use of 23 the work; and 24 “(II) is not ‘reasonably diligent’ solely 25 by reference to the lack of identifying in- Page 4 1 formation with respect to the copyright on 2 the copy or phonorecord of the work. 3 “(ii) The steps referred to in clause (i)(I) 4 shall ordinarily include, at a minimum, review 5 of the information maintained by the Register 6 of Copyrights under subparagraph (C). 7 “(iii) A reasonably diligent search includes 8 the use of reasonably available expert assistance 9 and reasonably available technology, which may 10 include, if reasonable under the circumstances, 11 resources for which a charge or subscription fee 12 is imposed. 13 “(C) INFORMATION TO GUIDE 14 SEARCHES.—The Register of Copyrights shall 15 receive, maintain, and make available to the 16 public, including through the Internet, informa- 17 tion from authoritative sources, such as Indus- 18 try guidelines, statements of best practices, and 19 other relevant documents, that is designed to 20 assist users in conducting and documenting a 21 reasonably diligent search under this sub- 22 section. Such information may include— 23 “(i) the records of the Copyright Of- 24 fice that are relevant to identifying and lo- 25 cating copyright owners; Page 5 1 “(ii) other sources of copyright owner 2 ship information reasonably available to 3 users; 4 “(iii) methods to identify copyright 5 ownership information associated with a 6 work; 7 “(iv) sources of reasonably available 8 technology tools and reasonably available 9 expert assistance; and 10 “(v) best practices for documenting a 11 reasonably diligent search. 12 “(b) LIMITATIONS ON REMEDIES.—The limitations 13 on remedies in a case to which subsection (a) applies are 14 the following: 15 “(1) MONETARY RELIEF.— 16 “(A) GENERAL RULE.—Subject to sub- 17 paragraph (B), an award for monetary relief 18 (including actual damages, statutory damages, 19 costs, and attorney’s fees) may not be made, 20 other than an order requiring the infringer to 21 pay reasonable compensation for the use of the 22 infringed work. 23 “(B) EXCEPTIONS.—(i) An order requiring 24 the infringer to pay reasonable compensation Page 6 1 for the use of the infringed work may not be 2 made under subparagraph (A) if— 3 “(I) the infringement is performed 4 without any purpose of direct or indirect 5 commercial advantage and primarily for a 6 charitable, religious, scholarly, or edu- 7 cational purpose, and 8 “(II) the infringer ceases the infringe- 9 ment expeditiously after receiving notice of 10 the claim for infringement, 11 unless the copyright owner proves, and the 12 court finds, that the infringer has earned pro- 13 ceeds directly attributable to the infringement. 14 “(ii) If the infringer fails to negotiate in 15 good faith with the owner of the infringed work 16 regarding the amount of reasonable compensa- 17 tion for the use of the infringed work, the court 18 may award full costs, including a reasonable at 19 torney’s fee, against the infringer under section 20 505, subject to section 412. 21 “(2) INJUNCTIVE RELIEF.— 22 “(A) GENERAL RULE.—Subject to sub- 23 paragraph (B), the court may impose injunctive 24 relief to prevent or restrain the infringing use, 25 except that, if the infringer has met the re- Page 7 1 quirements of subsection (a), the relief shall, to 2 the extent practicable, account for any harm 3 that the relief would cause the infringer due to 4 its reliance on having performed a reasonably 5 diligent search under subsection (a). 6 “(B) SPECIAL RULE FOR NEW WORKS.—In 7 a case in which the infringer recasts, trans- 8 forms, adapts, or integrates the infringed work 9 with the infringer’s original expression in a new 10 work of authorship, the court may not, in 11 granting injunctive relief, restrain the infring- 12 er’s continued preparation or use of that new 13 work, if the infringer— 14 “(i) pays reasonable compensation to 15 the owner of the infringed copyright for 16 the use of the infringed work; and 17 “(ii) provides attribution to the owner 18 of the infringed copyright in a manner that 19 the court determines is reasonable under 20 the circumstances. 21 “(C) TREATMENT OF PARTIES NOT SUB- 22 JECT TO SUIT.—The limitations on remedies 23 under this paragraph shall not be available to 24 an infringer that asserts in an action under sec- 25 tion 501(b) that neither it nor its representative Page 8 1 acting in an official capacity is subject to suit 2 in Federal court for an award of damages to 3 the copyright owner under section 504, unless 4 the court finds that such infringer has— 5 “(i) complied with the requirements of 6 subsection (a) of this section; 7 “(ii) made a good faith offer of com- 8 pensation that was rejected by the copy- 9 right owner; and 10 “(iii) affirmed in writing its willing- 11 ness to pay such compensation to the copy- 12 right owner upon the determination by the 13 court that such compensation was reason- 14 able under paragraph (3) of this sub- 15 section. 16 “(D) CONSTRUCTION.—Nothing in sub- 17 paragraph (C) shall be deemed to authorize or 18 require, and no action taken pursuant to sub- 19 paragraph (C) shall be deemed to constitute, an 20 award of damages by the court against the in- 21 fringer. 22 “(E) RIGHTS AND PRIVILEGES NOT 23 WAIVED.—No action taken by an infringer pur- 24 suant to subparagraph (C) shall be deemed to 25 waive any right or privilege that, as a matter of Page 9 1 law, protects such infringer from being subject 2 to suit in Federal court for an award of dam- 3 ages to the copyright owner under section 504. 4 “(3) REASONABLE COMPENSATION.—In estab- 5 lishing reasonable compensation under paragraph 6 (1) or (2), the owner of the infringed copyright has 7 the burden of establishing the amount on which a 8 reasonable willing buyer and a reasonable willing 9 seller in the positions of the owner and the infringer 10 would have agreed with respect to the infringing use 11 of the work immediately before the infringement 12 began. 13 “(c) PRESERVATION OF OTHER RIGHTS, LIMITA- 14 TIONS, AND DEFENSE.—This section does not affect any 15 right, limitation, or defense to copyright infringement, in- 16 cluding fair use, under this title. If another provision of 17 this title provides for a statutory license when the copy- 18 right owner cannot be located, that provision applies in 19 lieu of this section. 20 “(d) COPYRIGHT FOR DERIVATIVE WORKS.—Not- 21 withstanding section 103(a), the infringing use of a work 22 in accordance with this section shall not limit or affect 23 the copyright protection for a work that uses the infringed 24 work.’’. Page 10 1 (b) CONFORMING AMENDMENT.—The table of sec- 2 tions for chapter 5 of title 17, United States Code, is 3 amended by adding at the end the following new item: “514. Limitation on remedies in cases involving orphan works.’’. 4 (c) EFFECTIVE DATE.—The amendments made by 5 this section shall apply only to infringing uses that com- 6 mence on or after June 1, 2008. 7 SEC. 3. REPORT TO CONGRESS ON AMENDMENTS. 8 The Register of Copyrights shall, not later than De- 9 cember 12, 2014, report to the Committee on the Judici- 10 ary of the House of Representatives and the Committee 11 on the Judiciary of the Senate on the implementation and 12 effects of the amendments made by section 2, including 13 any recommendations for legislative changes that the Reg- 14 ister considers appropriate. 15 SEC. 4. INQUIRY ON REMEDIES FOR SMALL COPYRIGHT 16 CLAIMS. 17 (a) IN GENERAL.—The Register of Copyrights shall 18 conduct an inquiry with respect to remedies for copyright 19 infringement claims seeking limited amounts of monetary 20 relief, including consideration of alternatives to disputes 21 currently heard in the United States district courts. The 22 inquiry shall cover infringement claims to which section 23 514 of title 17, United States Code (as added by section 24 2 of this Act), apply, and other infringement claims under 25 title 17, United States Code. Page 11 1 (b) PROCEDURES.—The Register of Copyrights shall 2 publish notice of the inquiry under subsection (a), pro- 3 viding a period during which interested persons may sub- 4 mit comments on the inquiry, and an opportunity for in- 5 terested persons to participate in public roundtables on 6 the inquiry. The Register shall hold the public roundtables 7 at such times as the Register considers appropriate. 8 (c) REPORT TO CONGRESS.—The Register of Copy- 9 rights shall, not later than 1 year after the date of the 10 enactment of this Act, prepare and submit to the Com- 11 mittee on the Judiciary of the House of Representatives 12 and the Committee on the Judiciary of the Senate a report 13 on the inquiry conducted under this section, including 14 such recommendations that the Register considers appro- 15 priate.