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Fear, Uncertainty, and Doubt is spread by those who would rather see the orphan works legislation fail. This is our third Myths and Facts report on orphan works.
Before today's Myth and Fact, I wanted to let you know we have a new Orphan Works Overview page to give those new to the issue an 30,000 foot view, and we also have a page that lists out the Myths and Facts we've collected so far. On to today's Myth and Fact...
MYTH: Unavailability of statutory damages means that owners cannot get compensated.
FACT: Both bills would require a user to pay a reasonable compensation to an emerging owner. This compensation is defined as the amount the parties would have agreed upon had they negotiated a license before the use began. If a user refuses to negotiate with the emerging owner in good faith or pay the compensation within a reasonable time, both bills currently provide that the user would be liable for all the remedies currently available under copyright law including statutory damages, which could be as high as $150,000 per work. Statutory damages of this sort are really punitive damages, and since owners will be reasonably compensated to be “made whole,” user communities have proposed limiting damages to at most paying the owner's attorneys fees. A user’s desire to avoid having to go to court and pay double attorneys fees (his own and the owner’s) would provide a good incentive to any user to negotiate an appropriate license. Thus, the bills would provide a fail-safe means of ensuring that owners get compensated.
An additional note: I've replied to some illustrators asking questions about orphan works. I've been glad to have a dialog with these owners who are truly concerned about the impact orphan works legislation can have on their livelihoods. A recurring theme in these emails has been that illustrators and photographers do not generally formally register their works with the Copyright Office and that to do so would be an additional burden. At the same time, they argue that orphan works policy would take away the "big stick" of statutory damages. I need to point out that these two arguments are contradictions. Owners can only avail themselves of statutory damages if they formally register their works. So, if you're an artist and you're going to argue in the future that it's too costly to register, yet orphan works takes away your statutory damages--you're arguing against yourself. And again, orphan works legislation does not require any author or owner to register their works.