EC. 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 AND STANDARDS- The term `materials and standards' includes--
`(A) the records of the Copyright Office that are relevant to identifying and locating copyright owners;
`(B) sources of copyright ownership information reasonably available to users, including private databases;
`(C) industry practices and guidelines of associations and organizations;
`(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
`(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.
`(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:
`(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 it.
`(C) An address and telephone number at which the owner of the infringed copyright may be contacted.
`(D) Information from which a reasonable person could conclude that the owner of the infringed copyright's claims of ownership and infringement are valid.
`(3) OWNER OF THE INFRINGED COPYRIGHT- The `owner of the infringed copyright' is the legal owner of the exclusive right under section 106 that is applicable to the infringement in question, or any party with the authority to grant or license that right.
`(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.
`(b) Conditions for Eligibility-
`(1) CONDITIONS-
`(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--
`(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, for the owner of the infringed copyright; and
`(II) was unable to locate the owner of the infringed copyright;
`(ii) before using the work, filed with the Register of Copyrights a Notice of Use under paragraph (3);
`(iii) 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;
`(iv) 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;
`(v) asserts in the initial pleading to the civil action the right to claim such limitations;
`(vi) consents to the jurisdiction of United States district court, or such court holds that the infringer is within the jurisdiction of the court; and
`(vii) 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).
`(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--
`(i) fails to negotiate reasonable compensation in good faith with the owner of the infringed copyright; or
`(ii) fails to render payment of reasonable compensation in a reasonably timely manner.
`(2) REQUIREMENTS FOR SEARCHES-
`(A) REQUIREMENTS FOR QUALIFYING SEARCHES-
`(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.
`(ii) DETERMINATION OF DILIGENT EFFORT- In determining whether a search is diligent under this subparagraph, a court shall consider whether--
`(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;
`(II) the infringer employed the applicable best practices maintained by the Register of Copyrights under subparagraph (B); and
`(III) the infringer performed the search before using the work and at a time that was reasonably proximate to the commencement of the infringement.
`(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).
`(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, current statements of best practices for conducting and documenting a search under this subsection.
`(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).
`(3) NOTICE OF USE ARCHIVE- The Register of Copyrights shall create and maintain an archive to retain the Notice of Use filings under paragraph (1)(A)(i)(III). Such filings shall include--
`(A) the type of work being used, as listed in section 102(a) of this title;
`(B) a description of the work;
`(C) a summary of the search conducted under paragraph (1)(A)(i)(I);
`(D) the owner, author, recognized title, and other available identifying element of the work, to the extent the infringer knows such information with a reasonable degree of certainty;
`(E) a certification that the infringer performed a qualifying search in good faith under this subsection to locate the owner of the infringed copyright; and
`(F) the name of the infringer and how the work will be used.
Notices of Use filings retained under the control of the Copyright Office shall be furnished only under the conditions specified by regulations of the Copyright Office.
`(4) 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.
`(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:
`(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 legal or beneficial 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, 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--
`(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 notice of the claim for infringement, and after conducting an expeditious good faith investigation of the claim, the infringer promptly ceased the infringement,
except that if the legal or beneficial owner of the exclusive right under the infringed copyright proves, and the court finds, that the infringer has earned proceeds directly attributable to the infringement, the portion of such proceeds so attributable may be awarded to such owner.
`(C) EFFECT OF REGISTRATION ON REASONABLE COMPENSATION- If a work is registered, the court may, in determining reasonable compensation under this paragraph, take into account the value, if any, added to the work by reason of such registration.
`(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.
`(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--
`(i) may not restrain the infringer's continued preparation or use of that new work;
`(ii) shall require that t
EC. 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 AND STANDARDS- The term `materials and standards' includes--
`(A) the records of the Copyright Office that are relevant to identifying and locating copyright owners;
`(B) sources of copyright ownership information reasonably available to users, including private databases;
`(C) industry practices and guidelines of associations and organizations;
`(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
`(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.
`(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:
`(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 it.
`(C) An address and telephone number at which the owner of the infringed copyright may be contacted.
`(D) Information from which a reasonable person could conclude that the owner of the infringed copyright's claims of ownership and infringement are valid.
`(3) OWNER OF THE INFRINGED COPYRIGHT- The `owner of the infringed copyright' is the legal owner of the exclusive right under section 106 that is applicable to the infringement in question, or any party with the authority to grant or license that right.
`(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.
`(b) Conditions for Eligibility-
`(1) CONDITIONS-
`(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--
`(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, for the owner of the infringed copyright; and
`(II) was unable to locate the owner of the infringed copyright;
`(ii) before using the work, filed with the Register of Copyrights a Notice of Use under paragraph (3);
`(iii) 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;
`(iv) 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;
`(v) asserts in the initial pleading to the civil action the right to claim such limitations;
`(vi) consents to the jurisdiction of United States district court, or such court holds that the infringer is within the jurisdiction of the court; and
`(vii) 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).
`(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--
`(i) fails to negotiate reasonable compensation in good faith with the owner of the infringed copyright; or
`(ii) fails to render payment of reasonable compensation in a reasonably timely manner.
`(2) REQUIREMENTS FOR SEARCHES-
`(A) REQUIREMENTS FOR QUALIFYING SEARCHES-
`(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.
`(ii) DETERMINATION OF DILIGENT EFFORT- In determining whether a search is diligent under this subparagraph, a court shall consider whether--
`(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;
`(II) the infringer employed the applicable best practices maintained by the Register of Copyrights under subparagraph (B); and
`(III) the infringer performed the search before using the work and at a time that was reasonably proximate to the commencement of the infringement.
`(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).
`(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, current statements of best practices for conducting and documenting a search under this subsection.
`(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).
`(3) NOTICE OF USE ARCHIVE- The Register of Copyrights shall create and maintain an archive to retain the Notice of Use filings under paragraph (1)(A)(i)(III). Such filings shall include--
`(A) the type of work being used, as listed in section 102(a) of this title;
`(B) a description of the work;
`(C) a summary of the search conducted under paragraph (1)(A)(i)(I);
`(D) the owner, author, recognized title, and other available identifying element of the work, to the extent the infringer knows such information with a reasonable degree of certainty;
`(E) a certification that the infringer performed a qualifying search in good faith under this subsection to locate the owner of the infringed copyright; and
`(F) the name of the infringer and how the work will be used.
Notices of Use filings retained under the control of the Copyright Office shall be furnished only under the conditions specified by regulations of the Copyright Office.
`(4) 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.
`(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:
`(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 legal or beneficial 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, 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--
`(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 notice of the claim for infringement, and after conducting an expeditious good faith investigation of the claim, the infringer promptly ceased the infringement,
except that if the legal or beneficial owner of the exclusive right under the infringed copyright proves, and the court finds, that the infringer has earned proceeds directly attributable to the infringement, the portion of such proceeds so attributable may be awarded to such owner.
`(C) EFFECT OF REGISTRATION ON REASONABLE COMPENSATION- If a work is registered, the court may, in determining reasonable compensation under this paragraph, take into account the value, if any, added to the work by reason of such registration.
`(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.
`(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--
`(i) may not restrain the infringer's continued preparation or use of that new work;
`(ii) shall require that t
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