True to his word, Lamar Smith is doing his best to get orphan works legislation through Congress this session. I attended the markup Wednesday of his Orphan Works Act of 2006 (HR-5439) introduced earlier this week. The Chairman of the House Judiciary IP Subcommittee said the bill, based on the US Copyright Office report on orphan works, is the result of "20 hours of negotiations over 2 months." A lack of a quorum prevented immediate action, but it was approved by voice vote in a separate gathering later. My support for this bill has put me in a tough place, for at its core it disproportionately undermines the rights of the small artists I focus on in my writings, but the patient reader will see below how I square this circle.

There were some changes from a draft proposal discussed at a hearing earlier this year. I felt moderately comfortable with that proposal, as I wrote at the time, but this does seem to be an improvement. Of course, Smith's modus operandi is to welcome revision at every stage, from draft legislation to subcommittee markup to full committee markup to House floor. His colleague Howard Berman called it "a bill we can all support" but said there was more work to be done between now and the full committee markup. That markup, Smith said after the Wed. markup, would likely be shortly after Memorial Day, and I predict yet another version will be put forward. As for some of the changes:

1. The recovery of attorney's fees were added for cases in which an infringer fails to negotiate with the owner of the infringed work in good faith.
2. The Copyright Office would conduct an inquiry regarding remedies for copyright infringement claims seeking limited amounts of monetary relief, including consideration of alternatives to disputes currently heard in US district courts.
3. There is a bit more language explaining a "reasonably diligent search."
4. Paid searches are explicitly listed as potentially part of a reasonable search.
5. The exemption for scholarly use is clarified.
6. The Copyright Office would gather and publish best practices for searches and for making works known to searchers.
7. The effective date is delayed until June 1, 2008 to give copyright owners time to prepare.

The latter element is critical, and we might need to push that back a bit farther. The parties that remain the least pleased with this bill are those in the visual arts field. Berman noted that many digital photographs and other visual arts now wouldn't necessarily be considered orphan works, but their owners can often be more difficult to identify, so under this bill some works might become orphans if a reasonably diligent search still wasn't diligent enough. The key, of course, is effective online databases.

There is an assumption in this legislation that copyright owners will build such databases; the Copyright Office under this legislation would be required to "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..."

My friend David Carney of Tech Law Journal seems to feel this borders on requiring registration by copyright owners, which is forbidden under the Berne Convention (no formalities allowed). I hope that is not correct, because I believe firmly that we must remain in Berne and am concerned when I hear some that favor reduced intellectual property protection propose withdrawing from Berne.

Carney also points out something that is, unfortunately, true about this bill. "While the bill would weaken the protection afforded to creators," he wrote, "it would primarily harm individuals and very small businesses." I have written in defense of individual artists, yet they are the ones most likely not to be found in a "diligent" search; material owned by any significantly sized corporation will be easy to track down.

I believe in artists, but I also believe in artists taking proactive steps to protect their own work. No, I don't favor mandatory registration as we had before 1976, but if there are non-governmental databases that can help protect an artist that artist should make use of them. If these databases exist, there is no harm in the Copyright Office letting people know. An artist who truly wants her work protected, I believe, is unlikely to find her work an "orphan" under this legislation, but if it is and she learns of it, the bill provides her a path to stop use of the work (if that is what she wishes) and receive fair compensation.

I can't say how much society is harmed by the inaccessibility of some orphan works. There were many claims made to the Copyright Office in its proceeding, some more powerful than others. What I do know is this -- when we forbade the use of formatlities and adopted a lifetime-plus approach to copyright terms, we joined under Berne with nearly 170 other countries in a global pact of copyright protection. That was good. But the Copyright Office warned at the time that such a change could produce orphan works, and that has happened, in some forms of content more than others. It's time for us to address it.

There is another cost of not addressing it. As long as we allow orphan works to languish, ammunition is provided to those who would undermine intellectual property protection. Zoe Lofgren is a longtime opponent of the DMCA, and she once introduced legislation (written by Lawrence Lessig, with Lessig joining her at the bill introduction press conference) that would have required one to pay to register one's copyrighted works after 50 years in order to keep the copyright, a clear violation of Berne. At yesterday's markup she said she was happily abandoning her own bill addressing orphan works (again a proposal of Lessig, which would re-introduce registrations) and said the subcommittee under Smith's bill was "taking a stand for the public in general, for history and for culture." I can't say I'd go that far, but I will say that Lofgren now has one less arrow in her quiver in the copyright battle. That alone is reason enough to support this legislation.