For Immediate Release

Contact: Judith Platt

Ph: 202-220-4551

Publishers Urge Passage of ‘Orphan Works’ Legislation

Washington, DC, March 13, 2008:  The publishing industry today urged Congress to take long overdue legislative action to address the problem of “orphan works” – works under copyright whose owners cannot be identified or located by third parties seeking permission to use the works.

Testifying on behalf of the  Association of American Publishers (AAP), Allan Adler, AAP Vice President for Legal & Government Affairs, told the House Judiciary Committee’s Subcommittee on Courts, the Internet and Intellectual Property that book publishers, as both users and producers of copyrighted works, have an important stake in achieving an equitable and workable statutory solution, and have been deeply involved in the process leading up to the introduction and approval of  remedial  legislation by the Subcommittee in the spring of 2006.   Mr. Adler urged that the earlier bill, the “Orphan Works Act of 2006,” provide the starting point “for a push to enact orphan works legislation before the end of the current Congress later this year.”

Mr. Adler endorsed the “minimalist” approach taken in the 2006 legislation, which stipulated 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 the benefits of limits on the compensation and injunctive remedies available to the owner.  However, he noted the need for clarification of the criteria for a “reasonably diligent” search, including instances where the search is carried out by third parties or instances involving multiple, unrelated uses of a copyrighted work.  

 Mr. Adler also urged that State entities not be permitted to claim the proposed limitation on remedies protection.  He pointed out that under the 11th Amendment’s sovereign immunity provision, State entities cannot be liable for monetary damages, but can be enjoined from further infringing uses.  Were State entities allowed to avail themselves of the orphan works limitations, then copyright owners who came forward with an infringement claim against a State entity which balked at providing “reasonable compensation,” would be left with no recourse.

The full testimony is available here

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 publishers in the United States, as well as smaller and non-profit publishers, university presses and scholarly societies.  AAP members publish hardcover and paperback books in every field, educational materials for the elementary, secondary, postsecondary, and professional markets, scholarly journals, computer software, and electronic products and services.  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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