[Congressional Bills 110th Congress]
[From the U.S. Government Publishing Office]
[S. 2913 Reported in Senate (RS)]






                                                       Calendar No. 738
110th CONGRESS
  2d Session
                                S. 2913

To provide a limitation on judicial remedies in copyright infringement 
                     cases involving orphan works.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             April 24, 2008

 Mr. Leahy (for himself and Mr. Hatch) introduced the following bill; 
  which was read twice and referred to the Committee on the Judiciary

                              May 15, 2008

                Reported by Mr. Leahy, with an amendment
 [Strike out all after the enacting clause and insert the part printed 
                               in italic]

_______________________________________________________________________

                                 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 Representatives of the 
United States of America in Congress assembled,

<DELETED>SECTION 1. SHORT TITLE.</DELETED>

<DELETED>    This Act may be cited as the ``Shawn Bentley Orphan Works 
Act of 2008''.</DELETED>

<DELETED>SEC. 2. LIMITATION ON REMEDIES IN CASES INVOLVING ORPHAN 
              WORKS.</DELETED>

<DELETED>    (a) Limitation on Remedies.--Chapter 5 of title 17, United 
States Code, is amended by adding at the end the following:</DELETED>
<DELETED>``Sec. 514. Limitation on remedies in cases involving orphan 
              works</DELETED>
<DELETED>    ``(a) Definitions.--In this section, the following 
definitions shall apply:</DELETED>
        <DELETED>    ``(1) Materials and standards.--The term 
        `materials and standards' includes--</DELETED>
                <DELETED>    ``(A) the records of the Copyright Office 
                that are relevant to identifying and locating copyright 
                owners;</DELETED>
                <DELETED>    ``(B) sources of copyright ownership 
                information reasonably available to users, including 
                private databases;</DELETED>
                <DELETED>    ``(C) industry practices and guidelines of 
                associations and organizations;</DELETED>
                <DELETED>    ``(D) technology tools and expert 
                assistance, 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</DELETED>
                <DELETED>    ``(E) electronic databases, including 
                databases that are available to the public through the 
                Internet, that allow for searches of copyrighted works 
                and for the copyright owners of works, including 
                through text, sound, and image recognition 
                tools.</DELETED>
        <DELETED>    ``(2) Notice of claim for infringement.--The term 
        `notice of the claim for infringement' means, with respect to a 
        claim for copyright infringement, a written notice that 
        includes at a minimum the following:</DELETED>
                <DELETED>    ``(A) The name of the owner of the 
                infringed copyright.</DELETED>
                <DELETED>    ``(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 sufficient to identify 
                it.</DELETED>
                <DELETED>    ``(C) An address and telephone number at 
                which the owner of the infringed copyright may be 
                contacted.</DELETED>
                <DELETED>    ``(D) Information from which a reasonable 
                person could conclude that the owner of the infringed 
                copyright's claims of ownership and infringement are 
                valid.</DELETED>
        <DELETED>    ``(3) Owner of the infringed copyright.--The 
        `owner of the infringed copyright' is the legal owner of the 
        exclusive right under section 106, or any party with the 
        authority to grant or license such right, that is applicable to 
        the infringement.</DELETED>
        <DELETED>    ``(4) Reasonable compensation.--The term 
        `reasonable compensation' means, with respect to a claim for 
        infringement, the amount on which a willing 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.</DELETED>
<DELETED>    ``(b) Conditions for Eligibility.--</DELETED>
        <DELETED>    ``(1) Conditions.--</DELETED>
                <DELETED>    ``(A) In general.--Notwithstanding 
                sections 502 through 505, and subject to subparagraph 
                (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 infringer--</DELETED>
                        <DELETED>    ``(i) proves by a preponderance of 
                        the evidence that before the infringement 
                        began, the infringer, a person acting on behalf 
                        of the infringer, or any person jointly and 
                        severally liable with the infringer for the 
                        infringement--</DELETED>
                                <DELETED>    ``(I) performed and 
                                documented a qualifying search, in good 
                                faith, for the owner of the infringed 
                                copyright; and</DELETED>
                                <DELETED>    ``(II) was unable to 
                                locate the owner of the infringed 
                                copyright;</DELETED>
                        <DELETED>    ``(ii) provided attribution, in a 
                        manner that is reasonable under the 
                        circumstances, to the owner of the infringed 
                        copyright, if such owner was known with a 
                        reasonable degree of certainty, based on 
                        information obtained in performing the 
                        qualifying search;</DELETED>
                        <DELETED>    ``(iii) included with the use of 
                        the infringing work a symbol or other notice of 
                        the use of the infringing work, in a manner 
                        prescribed by the Register of 
                        Copyrights;</DELETED>
                        <DELETED>    ``(iv) asserts in the initial 
                        pleading to the civil action the right to claim 
                        such limitations;</DELETED>
                        <DELETED>    ``(v) consents to the jurisdiction 
                        of United States district court, or such court 
                        holds that the infringer is within the 
                        jurisdiction of the court; and</DELETED>
                        <DELETED>    ``(vi) at the time of making the 
                        initial discovery disclosures required under 
                        rule 26 of the Federal Rules of Civil 
                        Procedure, states with particularity the basis 
                        for the right to claim the limitations, 
                        including a detailed description and 
                        documentation of the search undertaken in 
                        accordance with paragraph (2)(A).</DELETED>
                <DELETED>    ``(B) Exception.--Subparagraph (A) does 
                not apply if, after receiving notice of the claim for 
                infringement and having an opportunity to conduct an 
                expeditious good faith investigation of the claim, the 
                infringer--</DELETED>
                        <DELETED>    ``(i) fails to negotiate 
                        reasonable compensation in good faith with the 
                        owner of the infringed copyright; or</DELETED>
                        <DELETED>    ``(ii) fails to render payment of 
                        reasonable compensation in a reasonably timely 
                        manner.</DELETED>
        <DELETED>    ``(2) Requirements for searches.--</DELETED>
                <DELETED>    ``(A) Requirements for qualifying 
                searches.--</DELETED>
                        <DELETED>    ``(i) In general.--For purposes of 
                        paragraph (1)(A)(i)(I), a search is qualifying 
                        if the infringer undertakes a diligent effort 
                        to locate the owner of the infringed 
                        copyright.</DELETED>
                        <DELETED>    ``(ii) Determination of diligent 
                        effort.--In determining whether a search is 
                        diligent under this subparagraph, a court shall 
                        consider whether--</DELETED>
                                <DELETED>    ``(I) the actions taken in 
                                performing that search are reasonable 
                                and appropriate under the facts 
                                relevant to that search, including 
                                whether the infringer took actions 
                                based on facts uncovered by the search 
                                itself;</DELETED>
                                <DELETED>    ``(II) the infringer 
                                employed the applicable best practices 
                                maintained by the Register of 
                                Copyrights under subparagraph (B); 
                                and</DELETED>
                                <DELETED>    ``(III) the infringer 
                                performed the search before using the 
                                work and at a time that was reasonably 
                                proximate to the commencement of the 
                                infringement.</DELETED>
                        <DELETED>    ``(iii) Lack of identifying 
                        information.--The fact that a particular copy 
                        or phonorecord lacks identifying information 
                        pertaining to the owner of the infringed 
                        copyright is not sufficient to meet the 
                        conditions under paragraph 
                        (1)(A)(i)(I).</DELETED>
                <DELETED>    ``(B) Information to guide searches; best 
                practices.--</DELETED>
                        <DELETED>    ``(i) Statements of best 
                        practices.--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 
                        subsection.</DELETED>
                        <DELETED>    ``(ii) Consideration of relevant 
                        materials and standards.--In maintaining the 
                        statements of best practices required under 
                        clause (i), the Register of Copyrights shall, 
                        from time to time, consider materials and 
                        standards that may be relevant to the 
                        requirements for a qualifying search under 
                        subparagraph (A).</DELETED>
        <DELETED>    ``(3) Penalty for failure to comply.--If an 
        infringer fails to comply with any requirement under this 
        subsection, the infringer is subject to all the remedies 
        provided in section 502 through 505, subject to section 
        412.</DELETED>
<DELETED>    ``(c) Limitations on Remedies.--The limitations on 
remedies in a civil action for infringement of a copyright to which 
this section applies are the following:</DELETED>
        <DELETED>    ``(1) Monetary relief.--</DELETED>
                <DELETED>    ``(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 to the legal or beneficial owner of the 
                exclusive right under the infringed copyright for the 
                use of the infringed work.</DELETED>
                <DELETED>    ``(B) Further limitations.--An order 
                requiring the infringer to pay reasonable compensation 
                for the use of the infringed work may not be made under 
                subparagraph (A) if the infringer is a nonprofit 
                educational institution, museum, library, or archives, 
                or a public broadcasting entity (as defined in 
                subsection (f) of section 118) and the infringer proves 
                by a preponderance of the evidence that--</DELETED>
                        <DELETED>    ``(i) the infringement was 
                        performed without any purpose of direct or 
                        indirect commercial advantage;</DELETED>
                        <DELETED>    ``(ii) the infringement was 
                        primarily educational, religious, or charitable 
                        in nature; and</DELETED>
                        <DELETED>    ``(iii) after receiving notice of 
                        the claim for infringement, and after 
                        conducting an expeditious good faith 
                        investigation of the claim, the infringer 
                        promptly ceased the infringement.</DELETED>
                <DELETED>    ``(C) Exception to further limitation.--
                Notwithstanding the limitation established under 
                subparagraph (B), if the owner of an infringed 
                copyright proves, and a court finds, that the infringer 
                has earned proceeds directly attributable to the use of 
                the infringed work by the infringer, the portion of 
                such proceeds attributable to such infringement may be 
                awarded to the owner.</DELETED>
        <DELETED>    ``(2) Injunctive relief.--</DELETED>
                <DELETED>    ``(A) General rule.--Subject to 
                subparagraph (B), the court may impose injunctive 
                relief to prevent or restrain any infringement alleged 
                in the civil action.</DELETED>
                <DELETED>    ``(B) Exception.--In a case in which the 
                infringer has prepared or commenced preparation of a 
                work that recasts, transforms, adapts, or integrates 
                the infringed work with a significant amount of the 
                infringer's original expression, any injunctive relief 
                ordered by the court--</DELETED>
                        <DELETED>    ``(i) may not restrain the 
                        infringer's continued preparation or use of 
                        that new work;</DELETED>
                        <DELETED>    ``(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</DELETED>
                        <DELETED>    ``(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 requested 
                        by such owner.</DELETED>
                <DELETED>    ``(C) Limitations.--The limitations on 
                injunctive relief under subparagraphs (A) and (B) shall 
                not be available to an infringer if the infringer 
                asserts in the civil action that neither the infringer 
                or any representative of the infringer acting in an 
                official capacity is 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, unless the court 
                finds that the infringer--</DELETED>
                        <DELETED>    ``(i) has complied with the 
                        requirements of subsection (b); and</DELETED>
                        <DELETED>    ``(ii) has made an enforceable 
                        promise to pay reasonable compensation to the 
                        legal or beneficial owner of the exclusive 
                        right under the infringed copyright.</DELETED>
                <DELETED>    ``(D) Rule of construction.--Nothing in 
                subparagraph (C) shall be construed to authorize or 
                require, and no action taken under such subparagraph 
                shall be deemed to constitute, either an award of 
                damages by the court against the infringer or an 
                authorization to sue a State.</DELETED>
                <DELETED>    ``(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.</DELETED>
<DELETED>    ``(d) Preservation of Other Rights, Limitations, and 
Defenses.--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 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.</DELETED>
<DELETED>    ``(e) Copyright for Derivative Works and Compilations.--
Notwithstanding section 103(a), an infringer 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.''.</DELETED>
<DELETED>    (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 following:</DELETED>

<DELETED>``514. Limitation on remedies in cases involving orphan 
                            works.''.

<DELETED>SEC. 3. DATABASE OF PICTORIAL, GRAPHIC, AND SCULPTURAL 
              WORKS.</DELETED>

<DELETED>    (a) Establishment of Database.--</DELETED>
        <DELETED>    (1) In general.--The Register of Copyrights shall 
        undertake a certification process for the establishment of an 
        electronic database that facilitates the search for pictorial, 
        graphic, and sculptural works that are subject to copyright 
        protection under title 17, United States Code.</DELETED>
        <DELETED>    (2) Process and standards for certification.--The 
        process and standards for certification 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--
        </DELETED>
                <DELETED>    (A) the name of all authors of the work, 
                if known, and contact information for any author if the 
                information is readily available;</DELETED>
                <DELETED>    (B) the name of the copyright owner if 
                different from the author, and contact information of 
                the copyright owner;</DELETED>
                <DELETED>    (C) the title of the copyrighted work, if 
                such work has a title;</DELETED>
                <DELETED>    (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 available, a 
                description sufficient to identify the work;</DELETED>
                <DELETED>    (E) one or more mechanisms that allow for 
                the search and identification of a work by both text 
                and image; and</DELETED>
                <DELETED>    (F) security measures that reasonably 
                protect against unauthorized access to, or copying of, 
                the information and content of the electronic 
                database.</DELETED>
<DELETED>    (b) Public Availability.--The Register of Copyrights--
</DELETED>
        <DELETED>    (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</DELETED>
        <DELETED>    (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.</DELETED>

<DELETED>SEC. 4. EFFECTIVE DATE.</DELETED>

<DELETED>    (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 commence on or after 
January 1, 2009.</DELETED>
<DELETED>    (b) Pictorial, Graphic, and Sculptural Works.--With 
respect to pictorial, graphic, and sculptural works, the amendments 
made by section 2 shall--</DELETED>
        <DELETED>    (1) take effect on the earlier of--</DELETED>
                <DELETED>    (A) the date on which the Copyright Office 
                certifies under section 3 at least 2 separate and 
                independent searchable, comprehensive, electronic 
                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</DELETED>
                <DELETED>    (B) January 1, 2011; and</DELETED>
        <DELETED>    (2) apply to infringing uses that commence on or 
        after that effective date.</DELETED>
<DELETED>    (c) Publication in Federal Register.--The Register of 
Copyrights shall publish the effective date described in subsection 
(b)(1) in the Federal Register, together with a notice that the 
amendments made by section 2 take effect on that date with respect to 
pictorial, graphic, and sculptural works.</DELETED>
<DELETED>    (d) Definition.--In this section, the term ``pictorial, 
graphic, and sculptural works'' has the meaning given that term in 
section 101 of title 17, United States Code.</DELETED>

<DELETED>SEC. 5. REPORT TO CONGRESS.</DELETED>

<DELETED>    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 effects of the amendments made by section 2, 
including any recommendations for legislative changes that the Register 
considers appropriate.</DELETED>

<DELETED>SEC. 6. STUDY ON REMEDIES FOR SMALL COPYRIGHT 
              CLAIMS.</DELETED>

<DELETED>    (a) In General.--The Register of Copyrights shall conduct 
a study with respect to remedies for copyright infringement 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 infringement claims 
to which section 514 of title 17, United States Code, apply, and other 
infringement claims under such title 17.</DELETED>
<DELETED>    (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 
appropriate.</DELETED>
<DELETED>    (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 
administrative, regulatory, or legislative recommendations that the 
Register considers appropriate.</DELETED>

<DELETED>SEC. 7. STUDY ON COPYRIGHT DEPOSITS.</DELETED>

<DELETED>    (a) In General.--The Comptroller General of the United 
States shall conduct a study examining the function of the deposit 
requirement in the copyright registration system under section 408 of 
title 17, United States Code, including--</DELETED>
        <DELETED>    (1) the historical purpose of the deposit 
        requirement;</DELETED>
        <DELETED>    (2) the degree to which deposits are made 
        available to the public currently;</DELETED>
        <DELETED>    (3) the feasibility of making deposits, 
        particularly visual arts deposits, electronically searchable by 
        the public for the purpose of locating copyright owners; 
        and</DELETED>
        <DELETED>    (4) the impact any change in the deposit 
        requirement would have on the collection of the Library of 
        Congress.</DELETED>
<DELETED>    (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 legislative recommendations that the Comptroller General 
considers appropriate.</DELETED>

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Shawn Bentley 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:
``Sec. 514. Limitation on remedies in cases involving orphan works
    ``(a) Definitions.--In this section, the following definitions 
shall apply:
            ``(1) Materials.--The term `materials' includes--
                    ``(A) the records of the Copyright Office that are 
                relevant to identifying and locating copyright owners;
                    ``(B) sources of copyright ownership information 
                and, where appropriate, licensor information, 
                reasonably available to users, including private 
                databases;
                    ``(C) technology tools and expert assistance; and
                    ``(D) electronic databases, including databases 
                that are available to the public through the Internet, 
                that allow for searches of copyrighted works and for 
                the copyright owners of works, including through text, 
                sound, and image recognition tools.
            ``(2) Notice of claim of infringement.--The term `notice of 
        claim of infringement' means, with respect to a claim of 
        copyright infringement, a written notice sent from the owner of 
        the infringed copyright or a person acting on the owner's 
        behalf to the infringer or a person acting on the infringer's 
        behalf, that includes at a minimum--
                    ``(A) the name of the owner of the infringed 
                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 sufficient to identify 
                that work;
                    ``(C) an address and telephone number at which the 
                owner of the infringed copyright or a person acting on 
                behalf of the owner may be contacted; and
                    ``(D) information reasonably sufficient to permit 
                the infringer to locate the infringer's material in 
                which the infringed work resides.
            ``(3) Owner of the infringed copyright.--The `owner of the 
        infringed copyright' is the owner of any particular exclusive 
        right under section 106 that is applicable to the infringement, 
        or any person or entity with the authority to grant or license 
        such right on an exclusive or nonexclusive basis.
            ``(4) Reasonable compensation.--The term `reasonable 
        compensation' means, with respect to a claim of infringement, 
        the amount on which a willing 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 sections 502 
                through 506, and subject to subparagraph (B), in an 
                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 infringer--
                            ``(i) proves by a preponderance of the 
                        evidence that before the infringement began, 
                        the infringer, a person acting on behalf 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, to 
                                locate and identify the owner of the 
                                infringed copyright; and
                                    ``(II) was unable to locate and 
                                identify an owner of the infringed 
                                copyright;
                            ``(ii) provided attribution, in a manner 
                        that is reasonable under the circumstances, to 
                        the legal owner of the infringed copyright, if 
                        such legal owner was known with a reasonable 
                        degree of certainty, based on information 
                        obtained in performing the qualifying search;
                            ``(iii) included with the public 
                        distribution, display, or performance of the 
                        infringing work a symbol or other notice of the 
                        use of the infringing work, the form and manner 
                        of which shall be prescribed by the Register of 
                        Copyrights, which may be in the footnotes, 
                        endnotes, bottom margin, end credits, or in any 
                        other such manner as to give notice that the 
                        infringed work has been used under this 
                        section;
                            ``(iv) asserts in the initial pleading to 
                        the civil action eligibility for such 
                        limitations;
                            ``(v) consents to the jurisdiction of 
                        United States district court, or, in the 
                        absence of such consent, if such court holds 
                        that the infringer is within the jurisdiction 
                        of the court; and
                            ``(vi) at the time of making the initial 
                        discovery disclosures required under rule 26 of 
                        the Federal Rules of Civil Procedure, states 
                        with particularity the basis for eligibility 
                        for the limitations, including a detailed 
                        description and documentation of the search 
                        undertaken in accordance with paragraph (2)(A) 
                        and produces documentation of the search.
                    ``(B) Exception.--Subparagraph (A) does not apply 
                if the infringer or a person acting on behalf of the 
                infringer receives a notice of claim of infringement 
                and, after receiving such notice and having an 
                opportunity to conduct an expeditious good faith 
                investigation of the claim, the infringer--
                            ``(i) fails to engage in negotiation in 
                        good faith regarding reasonable compensation 
                        with the owner of the infringed copyright; or
                            ``(ii) fails to render payment of 
                        reasonable compensation in a reasonably timely 
                        manner after reaching an agreement with the 
                        owner of the infringed copyright or under an 
                        order described in subsection (c)(1)(A).
            ``(2) Requirements for searches.--
                    ``(A) Requirements for qualifying searches.--
                            ``(i) In general.--A search ordinarily 
                        qualifies under paragraph (1)(A)(i)(I) if the 
                        infringer, a person acting on behalf of the 
                        infringer, or any person jointly and severally 
                        liable with the infringer for the infringement, 
                        makes use of the materials and otherwise 
                        undertakes a diligent effort to locate the 
                        owner of the infringed work. A diligent effort 
                        will ordinarily be based on best practices, as 
                        applicable, and any other actions reasonable 
                        and appropriate under the facts relevant to 
                        that search, including further actions based on 
                        facts uncovered during the initial search, and 
                        be performed before, and at a time reasonably 
                        proximate to, the infringement.
                            ``(ii) Lack of identifying information.--
                        The fact that a particular copy or phonorecord 
                        lacks identifying information pertaining to the 
                        owner of the infringed copyright is not 
                        sufficient to meet the conditions under 
                        paragraph (1)(A)(i)(I).
                            ``(iii) Use of resources for charge.--A 
                        qualifying search under paragraph (1)(A)(i)(I) 
                        may include use of 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.
                    ``(B) Information to guide searches; best 
                practices.--
                            ``(i) Statements of best practices.--The 
                        Register of Copyrights shall maintain and make 
                        available to the public, including through the 
                        Internet, at least 1 statement of best 
                        practices for each category, or, in the 
                        Register's discretion, subcategory of work 
                        under section 102(a) of this title, for 
                        conducting and documenting a search under this 
                        subsection, which will ordinarily include 
                        reference to materials relevant to a search. 
                        The Register may maintain more than 1 statement 
                        for each category or subcategory, as 
                        appropriate.
                            ``(ii) Consideration of relevant 
                        materials.--The Register of Copyrights shall, 
                        from time to time, update or modify each 
                        statement of best practices at the Register's 
                        discretion and should, in maintaining and 
                        updating such statements, consider materials 
                        and any relevant guidelines submitted to the 
                        Register that, in the Register's discretion, 
                        are reasonable and relevant to the requirements 
                        of a qualifying search, and databases for 
                        pictorial, graphical, and sculptural works, 
                        where appropriate and reasonably available for 
                        a given use.
            ``(3) Penalty for failure to comply.--If an infringer fails 
        to comply with any requirement under this subsection, the 
        infringer is not eligible for a limitation on remedies under 
        this section.
    ``(c) Limitations on Remedies.--The limitations on remedies in an 
action for infringement of a copyright to which this section 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 to the 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 compensation for the use of 
                the infringed work may not be made under subparagraph 
                (A) if the infringer is a nonprofit educational 
                institution, museum, library, archives, or a public 
                broadcasting entity (as defined in subsection (f) of 
                section 118), or any of such entities' employees acting 
                within the scope of their employment, and the infringer 
                proves by a preponderance of the evidence that--
                            ``(i) the infringement was performed 
                        without any purpose of direct or indirect 
                        commercial advantage;
                            ``(ii) the infringement was primarily 
                        educational, religious, or charitable in 
                        nature; and
                            ``(iii) after receiving a notice of claim 
                        of infringement, and having an opportunity to 
                        conduct an expeditious good faith investigation 
                        of the claim, the infringer promptly ceased the 
                        infringement.
            ``(2) Injunctive relief.--
                    ``(A) General rule.--Subject to subparagraph (B), 
                the court may impose injunctive relief to prevent or 
                restrain any infringement alleged in the civil action. 
                If the infringer has met the requirements of subsection 
                (b), the relief shall, to the extent practicable and 
                subject to applicable law, account for any harm that 
                the relief would cause the infringer due to its 
                reliance on subsection (b).
                    ``(B) Exception.--In a case in which the infringer 
                has prepared or commenced preparation of a new work of 
                authorship that recasts, transforms, adapts, or 
                integrates the infringed work with a significant amount 
                of original expression, any injunctive relief ordered 
                by the court may not restrain the infringer's continued 
                preparation or use of that new work, if--
                            ``(i) the infringer pays reasonable 
                        compensation in a reasonably timely manner 
                        after the amount of such compensation has been 
                        agreed upon with the owner of the infringed 
                        copyright or determined by the court; and
                            ``(ii) the court also requires that the 
                        infringer provide attribution, in a manner that 
                        is reasonable under the circumstances, to the 
                        legal owner of the infringed copyright, if 
                        requested by such owner.
                    ``(C) Limitations.--The limitations on injunctive 
                relief under subparagraphs (A) and (B) shall not be 
                available to an infringer if the infringer asserts in 
                the action that neither the infringer nor any 
                representative of the infringer acting in an official 
                capacity is subject to suit in the courts of the United 
                States for an award of damages for the infringement, 
                unless the court finds that the infringer--
                            ``(i) has complied with the requirements of 
                        subsection (b); and
                            ``(ii) has made an enforceable promise to 
                        pay reasonable compensation to the owner of the 
                        exclusive right under the infringed copyright.
                    ``(D) Rule of construction.--Nothing in 
                subparagraph (C) shall be construed to authorize or 
                require, and no action taken under such subparagraph 
                shall be deemed to constitute, either an award of 
                damages by the court against the infringer or an 
                authorization to sue a State.
                    ``(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.
    ``(d) Preservation of Other Rights, Limitations, and Defenses.--
This section does not affect any right, or any limitation or defense to 
copyright infringement, including fair use, under this title. If 
another provision of this title provides for a statutory license that 
would permit the use contemplated by the infringer, that provision 
applies instead of this section.
    ``(e) Copyright for Derivative Works and Compilations.--
Notwithstanding section 103(a), an infringer who qualifies for the 
limitation on remedies afforded by this section 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.
    ``(f) Exclusion for Fixations in or on Useful Articles.--The 
limitations on remedies under this section shall not be available to an 
infringer for infringements resulting from fixation of a pictorial, 
graphic, or sculptural work in or on a useful article that is offered 
for sale or other distribution to the public.''.
    (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 following:

``514. Limitation on remedies in cases involving orphan works.''.
    (c) Effective Date.--
            (1) In general.--The amendments made by this section 
        shall--
                    (A) take effect on the later of--
                            (i) January 1, 2009; or
                            (ii) the date which is the earlier of--
                                    (I) 30 days after the date on which 
                                the Copyright Office publishes notice 
                                in the Federal Register that it has 
                                certified under section 3 that there 
                                exist and are available at least 2 
                                separate and independent searchable, 
                                electronic databases, that allow for 
                                searches of copyrighted works that are 
                                pictorial, graphic, and sculptural 
                                works, and are available to the public; 
                                or
                                    (II) January 1, 2013; and
                    (B) apply to infringing uses that commence on or 
                after that effective date.
            (2) Definition.--In this subsection, the term ``pictorial, 
        graphic, and sculptural works'' has the meaning given that term 
        in section 101 of title 17, United States Code.

SEC. 3. DATABASES OF PICTORIAL, GRAPHIC, AND SCULPTURAL WORKS.

    The Register of Copyrights shall undertake a process to certify 
that there exist and are available databases that facilitate a user's 
search for pictorial, graphic, and sculptural works that are subject to 
copyright protection under title 17, United States Code. The Register 
shall only certify that databases are available under this section if 
such databases are determined to be effective and not prohibitively 
expensive and include the capability to be searched using 1 or more 
mechanisms that allow for the search and identification of a work by 
both text and image and have sufficient information regarding the works 
to enable a potential user of a work to identify or locate the 
copyright owner or authorized agent.

SEC. 4. 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 effects of the amendments made by section 2, 
including any recommendations for legislative changes that the Register 
considers appropriate.

SEC. 5. STUDY ON REMEDIES FOR SMALL COPYRIGHT CLAIMS.

    (a) In General.--The Register of Copyrights shall conduct a study 
with respect to remedies for copyright infringement 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 infringement claims 
to which section 514 of title 17, United States Code, apply, and other 
infringement claims under that title.
    (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 appropriate.
    (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 administrative, 
regulatory, or legislative recommendations that the Register considers 
appropriate.

SEC. 6. STUDY ON COPYRIGHT DEPOSITS.

    (a) In General.--The Comptroller General of the United States shall 
conduct a study examining the function of the deposit requirement in 
the copyright registration system under section 408 of title 17, United 
States Code, including--
            (1) the historical purpose of the deposit requirement;
            (2) the degree to which deposits are made available to the 
        public currently;
            (3) the feasibility of making deposits, particularly visual 
        arts deposits, electronically searchable by the public for the 
        purpose of locating copyright owners; and
            (4) the impact any change in the deposit requirement would 
        have on the collection of the Library 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 Senate and the Committee on the Judiciary of the 
House of Representatives a report on the study conducted under this 
section, including such administrative, regulatory, or legislative 
recommendations that the Comptroller General considers appropriate.
                                                       Calendar No. 738

110th CONGRESS

  2d Session

                                S. 2913

_______________________________________________________________________

                                 A BILL

To provide a limitation on judicial remedies in copyright infringement 
                     cases involving orphan works.

_______________________________________________________________________

                              May 15, 2008

                       Reported with an amendment