Is orphan works legislation doomed to fail again? Reaction to the new bills introduced in the House and Senate last month has been mixed, and lines are starting to be drawn in support and opposition. The proposed legislation is meant to tackle problems that arise when someone interested in using copyrighted material in a book, a song, a museum exhibit, etc., either can’t identify or can’t locate the rightsholder.

Legislators in both houses offered substantial concessions to photographers, the textile industry and other visual-works rightsholders who’ve opposed orphan works legislation in the past. The bills call for the U.S. Copyright Office to certify private searchable databases that would allow users to actually see a sample of each work, but also protect against unauthorized screen scraping. Under the proposed House bill, users would have to notify the Copyright Office each time they intend to use an orphan work and to provide substantial information about their efforts to find the missing rightsholders.

Rightsholder and user groups both are split. Among rightsholders, publishers (significant content users in their own right) favor the less restrictive Senate bill, while photographers are lined up behind the House version. Illustrators appear to remain firmly opposed to any substantive change to current law. User groups, including colleges, libraries and documentary producers, are finding that requirements of the bills are testing their longstanding support for a solution to the orphan works dilemma, though some seem prepared to accept a less-than-hoped-for outcome. But at least one prominent university advocate has concluded that no legislation is preferable to that being offered.

If the legislation stands a chance in this Congress, it will need to be pushed through both houses quickly. In this election year, little substantive work will take place after the start of summer. At this point, it’s a toss up whether key groups and both houses can resolve their differences by then.

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