PxlDan

The original version of this bill (defeated in 2006) was designed to allow non-profit and educational institutions (i.e. museums and libraries) to use images without the risk of being sued in situations where they could not find the owner of the copyrights. The U.S. Copyright Office defines "orphan work" as "copyrighted works whose owners are difficult or even impossible to locate". In an attempt to resolve this "orphan" issue, new versions of the bill have resurfaced:

"Congress is revisiting the longstanding problem of orphan works. These are books, films, photographs, music, and other creative works that cannot be reused by scholars and archivists because they are unable to find the works’ owners. Those who make use of the material risk incurring penalties for copyright infringement."
Excerpt: Andrea Foster, Legislation to Ease Problem of Orphan Works Is Introduced in Congress, Wired Campus, April 25, 2008.

While the bill has good intentions, and attempts to address valid concerns - the details have alarmed artists because it would allow anyone to legally use (and resell) creative works without license, monetary compensation or legal recourse for the creator.

Current copyright laws assume the artists has ownership. You created it. You signed it. You own the rights to it. No need to put a copyright mark on it - it's yours. No organization can display or resell prints of your work unless that organization has contractually licensed reproduction rights from the owner (The Artist). Should someone decide to swipe your creative work - you have the law on your side. At least for now.

If the Orphan Works Act were to pass, any organization could legally pinch and resell an artists work. If caught, they would only have to claim that they performed a “due diligent search” and were unable to find the copyright owner; therefore the art was considered "orphaned". In this case, a "diligent search" may be nothing more than an online post somewhere. Kind of like a "found cat" flyer posted on a light post nowhere near the owner.

Also, according to the bill, the penalty for being caught using images without the permission of the owner would be "reasonable compensation". What "reasonable compensation" is would be determined would be by the infringer. It would seem the fairest way to resolve the issue would be to let the lawyers work it out but, here's the punch-line, the copyright owner can not seek damages and legal fees. That's right, it would be nearly impossible for the vast majority of independent artists to pursue infringement lawsuits.

So what's an Artist to do? It would be up to the artists to prevent infringement by registering their artwork with an arts registry (according to the bill: a non-governmental databases of copyrighted works). So how would we do that? No Idea. See, these registries don't exist.

If these registries do come into existence they would be run by for-profit corporations, meaning the artist would be paying  to protect their own work. I personally create well over 100 paintings per year, not to mention all the photos, sketches, illustrations, graphics and general design work. That's going to take a considerable amount of time to "register" and add additional expenses to an already difficult business.

It's important to note that these are initial drafts submitted to congress and will go through a number of changes as it moves through the process. It will be interesting to see if it makes it to a vote... 

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