The Orphan Works Act of 2008 was passed by the Senate last week, but the House failed to take action before taking off for a couple of days, and the bill may be dead until after the fall election. The bill would have loosened restrictions on using copyright-protected works that have been abandoned by their creators. It has faced strong opposition from copyright holders who fear it could create loopholes that would insulate perpetrators of commercial copyright infringement.

The Senate passed the bill after making changes intended to clarify the language and provide a higher level of specificity. The House version of the bill states that individuals are entitled to make use of a work after conducting a "diligent search" for the copyright holder. That aspect of the bill generated controversy and was regarded by some in the content industry as excessively vague. Critics were concerned that the copyright office, which would ultimately have the task of interpreting the legislation and defining the standards for diligence, would be unable to devise consistent requirements.

The final version of the bill included an expanded definition of "diligent search" that instructs users to seek expert assistance and look in Internet databases and Copyright Office records to try to ascertain the rights-holder before using a work without permission. Specifically, users must first search the relevant Copyright Office records, search for the owner in "reasonably available" sources of information, use technology and printed publications, and search various databases, including those available online.

In fact, the bill specifies that these guidelines are merely minimums, and as pointed out by Public Knowledge, it also asks the Copyright Office to take into account comments from the Small Business Administration Office of Advocacy in order to determine best practices. This was added, no doubt, in order to quell critics' fears that the Copyright Office was not well-equipped to handle the job entirely on its own.

Unfortunately, after the Senate passed its version of the bill, it was sent to the House just as all hell broke loose over the current economic situation in the US, leaving it lost in the fallout from the failed attempt to pass the $700 billion bailout bill. As a result, lobbyists have apparently told Wired that the House isn't likely to take up the Orphan Works Act until after the November election.