For Immediate Release

March 8, 2006

Contact: Judith Platt
Ph: 202-220-4551
Email: jplatt@publishers.org

Publishers Urge “Fine-Tuning” Copyright Law to Facilitate Use of ‘Orphan Works’

March 8, 2006, Washington, DC:  The publishing industry today urged Congress to follow the recommendations of the U.S. Copyright Office by “fine-tuning” existing law to address the problem of “orphan works”—works under copyright whose owners cannot be located by third parties seeking permission to use the works.

Allan Adler, vice president for legal and government affairs of the Association of American Publishers (AAP) told the House Judiciary Committee’s Subcommittee on Courts, the Internet and Intellectual Property that “book publishers fully understand the frustration that can arise when the desire to incorporate a third-party work as part of a new work being prepared for publication is thwarted by...the inability of the publisher or author of the new work to locate that copyright owner.”   Noting that AAP has advocated for the need to resolve the problem of “orphan works” and has been an active participant in the process, submitting comments and taking part in public roundtable discussions of the problem, Mr. Adler praised the “minimalist approach” taken by the Copyright Office in putting forth legislative recommendations that are “relatively simple, uniform, flexible and self-executing,” stipulating that if the user of a copyrighted work has performed a “reasonably diligent but ultimately unsuccessful search” to locate the copyright owner, and that  owner later turns up and sues for infringement, the user would be “entitled to have the benefit of limitations on the compensation and injunctive remedies” that the owner could obtain.

While generally supporting the Copyright Office report in his testimony, Mr. Adler pointed to some areas that needed clarification, including the issue of what constitutes a  “good faith, reasonably diligent search,” recommending that this should be determined on a “case-by-case basis measured against a flexible standard of reasonableness.”  In addition, he disagreed with the Copyright Office recommendation that the “orphan works” scheme be sunsetted after 10 years. “This makes no sense to AAP because the impact of such a ‘sunset’ requirement is likely to be extremely disruptive to infringing users who have relied on the protection of the statutory ‘orphan works’ scheme for ongoing infringing uses,” he said.

The Association of American Publishers is the national trade association of the U.S. book publishing industry. AAP’s more than 300 members include most of the major commercial book publishers in the United States, as well as smaller and non-profit publishers, university presses and scholarly societies. The protection of intellectual property rights in all media, the defense of the freedom to read and the freedom to publish at home and abroad, and the promotion of reading and literacy are among the Association’s highest priorities.

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