- 1 Overview of U.S. Copyright law
Overview of U.S. Copyright law
“The right to copy,” specifically how copyright law is interpreted in the U.S. is essentially based on a “form of protection” provided to “original works of authorship,” including literary, dramatic, musical, artistic, and certain other intellectual works. Accompanying this law, is the doctrine of “fair use,” which was established via the courts and specifies four factors for determining whether a use is fair: the purpose and character of the use, the nature of the copyrighted material, the amount of the work used in proportion to the entire work and the effect of the use on the value of the copyrighted work. (title 17, U. S. Code) 
Works which are considered to be in the “public domain” indicate that no person can claim ownership rights or retain proprietary interests over a particular work. Specifically, works that were not published, nor registered for copyright as of Jan. 1, 1978, entered the public domain on Jan. 1, 2003, unless the works were published on or before Dec. 31, 2002. 
Orphan works, “copyrighted works whose owners may be impossible to identify and locate,” have increasingly become the topic of legislative proposals and court decisions. Public Knowledge, part of a coalition that has been active in promoting the use of orphan works, has proposed “competing visual registries” as a means for people to locate owners of orphaned works. Additionally, the group is “working to ensure that the 110th Congress moves toward a new copyright paradigm rather than fortifying the old paradigm and with it, old business models.” 
Beginning in the late 1990s, interested parties and organizations representing copyright owners and users pushed for copyright reform that would address the problems of orphan works. This pressure eventually led to the challenge of the 1998 Sonny Bono Copyright Term Extension Act, which extended “protection from life of the author plus fifty years to life of the author plus seventy years.” The measure, signed into law by President Clinton included “provisions applied to works under copyright on the date of its implementation… An exception permits libraries, archives, and non-profit educational institutions to treat copyrighted works in their last twenty years of protection as if they were in the public domain for non-commercial purposes.”
Rep. Lofgren's proposal
The challenge, albeit unsuccessful, prompted even more debate surrounding the issue of orphan works. Among those pushing for copyright reform measures, included Lawrence Lessig, a Professor of Law at Stanford Law School and founder of the school’s Center for Internet and Society. His response to the lost attack on the 1998 Sonny Bono Copyright Term Extension, included “one system for dealing with orphan works — register your copyright after 50 years and pay $1; if you don’t the work passes into the public domain.” Lessig’s proposal seemed to be key in Rep. Zoe Lofgren’s bill, which was introduced May 17, 2005 and cosponsored by Rep. John Doolittle.
The bill, the Public Domain Enhancement Act, would have “required the Register of Copyrights to charge a fee of $1 for maintaining in force the copyright in any published U.S. work. The bill would have required the fee to be due 50 years after the date of first publication or on December 31, 2006, whichever occurred later, and every ten years thereafter until the end of the copyright term. 
U.S. Copyright Office's proposal
Beginning in 2005, the U.S. Copyright Office began their examination of the issues surrounding "Orphan Works." The Office conducted several informal discussions with groups representing copyright owners and users. The Office released a report to Congress detailing the problem and suggesting a possible legislative approach to solve the problem. The reforms proposed would require users of orphan works to pay “reasonable compensation” to the owners of orphan works, should they appear after a "reasonably diligent search." This remedy would apply to "all works immediately."  
Response to proposal
On February 1, 2006, Public Knowledge President Gigi Sohn commended the U.S. Copyright Office for its report on orphan works, but said one of the key recommendations to Congress still "falls short." 
“The report is a tremendous contribution to the field, with substantial analysis and strong recommendations on many aspects of the orphan works problem,” Sohn said. 
Sohn further explained that Public Knowledge disagrees with the recommendation of the report that users of orphan works be required to pay “reasonable compensation” to the owners of orphan works, should they appear after a diligent search. 
“That approach keeps the orphans in the orphanage,” Sohn said.
In response to the report issued by the Copyright Office, Lessig clarified that “The Copyright Office’s report is brilliant… Its proposal is less brilliant. He considers his option as "a kind of copyright maintenance procedure." It differs from the Copyright Office’s proposal in three critical ways:
- First: It applies just to old works, not to new works. For works after enactment, copyright owners get a 14 year grace period where they need not worry at all about any orphan work requirement. For work published between 1978 and today, there’s no orphan work requirement until 2021. And for work published before 1978 (in a time when formalities were the norm), there is no requirement until 2012. 
- Second: It applies to published “United States works” only — not to foreign works or unpublished work. 
- Third: The requirement it imposes after the 14/5 year delay is registration. But not registration with the copyright office; instead, registration with a private registrar approved by the copyright office. No government run registries here. Instead, something more like a DNS for copyright. 
Rep. Lamar Smith's proposal
An additional proposal includes that of Rep. Lamar Smith (R-Texas) (ranking member, House Committee on the Judiciary). His bill, the Orphan Works Act of 2006, (HR 5439) related to that of Rep. Lofgren’s Public Domain Enhancement Act, would “limit the remedies available in a copyright infringement action if the infringer proves that: (1) the infringer performed and documented a reasonably diligent search in good faith to locate the copyright owner before using the work, but was unable to locate the owner; and (2) the infringing use of the work provided attribution to the author and owner of the copyright, if known.”
Response to Rep. Smith's proposal
Public Knowledge issued a statement in response to Smith's proposal. 
Additionally, four factors from Smith's bill that would help promote the use of orphan works are as follows:
- The measure prohibits injunctions when the user of an orphan work “recasts, transforms, adapts or integrates the [orphan] work with the [user’s] original expression in a new work of authorship….” This ensures that the publication of transformative works that may include the entirety of an orphan work will not be able to be stopped by a court.
- The bill requires the Copyright Office to make available information that will help users understand what might constitute a reasonably diligent search.
- The bill makes clear that in determining the “reasonable compensation” an orphan works user must pay should the orphan works owner reappear, the owner has the burden of establishing the amount that a willing buyer and willing seller would have agreed to.
- The bill eliminates a provision that would have required the rules to sunset after 5 years. 
Current legislative status
The current legislative status of proposals surrounding “orphan works” resides with another measure introduced by Smith, the Copyright Modernization Act of 2006, (H.R. 6052) which would “amend title 17, United States Code, to provide for licensing of digital delivery of musical works and to provide for limitation of remedies in cases in which the copyright owner cannot be located, and for other purposes.”
The bill is a culmination of the following previously introduced bills combined into one piece of legislation:
- H.R. 5553: The Section 115 Reform Act (SIRA) of 2006
- H.R. 5439: The Orphan Works Act of 2006
- H.R. 5921: The Intellectual Property Enhanced Criminal Enforcement Act of 2006 (specified provisions)