October 2 – October 9, 2008 Edition

Publishers Applaud
Senate Passage
of ‘Orphan Works’ Law

WASHINGTON, DC/09/29/08-The publishing industry this week praised the U.S. Senate’s swift passage of the “Shawn Bentley Orphan Works Act of 2008” (S.2913) which would 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. The Association of American Publishers (AAP) also applauds Senate Judiciary Committee Chairman Patrick Leahy (D-VT) and Senator Orrin Hatch (R-UT) for their leadership in crafting this important piece of legislation.

Marybeth Peters, Register of Copyrights for the US Copyright office, said in an online article September 25 that “the legislation would allow good-faith users of copyrighted content to move forward in cases where they wish to license a use but cannot locate the copyright owner after a diligent search.”

Because book publishers are both producers and users of copyrighted works, AAP members have considerable experience not only in licensing the use of their works by others, but in seeking permissions that may be necessary to allow them to incorporate photographs, illustrations and other third-party copyrighted works into the histories, biographies, textbooks and other kinds of copyrighted literary works they publish.

“AAP and its members fully understand the ‘orphan works’ problem and embrace the need for a carefully crafted solution,” said AAP Vice President for Legal and Government Affairs Allan Adler. “Enactment of the ‘Shawn Bentley Orphan Works Act’ before the close of this Congress would be an extremely important accomplishment.

Adler added that the AAP “hopes House supporters of ‘orphan works’ legislation will take up the Senate-passed bill and secure House passage so that the legislation may be presented to the President for his signature before final adjournment of the 110th Congress. But, even if the House does not act, Senate passage is a significant step, establishing a benchmark for continuing efforts to enact meaningful ‘orphan works’ legislation early in the new Congress.”

Peters said: “The problem is pervasive. Our study recounts the challenges that publishers, film makers, museums, libraries, universities, and private citizens, among others, have had in managing risk and liability when a copyright owner cannot be identified or located. In testimony before the Senate, a filmmaker spoke of the historically significant images that are removed from documentaries and never reach the public because ownership cannot be determined. In testimony before the House, the US Holocaust Museum spoke of the millions of pages of archival documents, photographs, oral histories, and reels of film that it and other museums cannot publish or digitize.

“In many respects, these orphans are a by-product of three decades of change that has slowly but surely relaxed the obligations of copyright owners to assert and manage their rights. Protection has become automatic. The term of copyright, once tied to the affirmative act (and dates) of publication, registration and renewal, has been extended twice, in 1978 and 1998, and was prospectively reconfigured to track the less obvious period of life-of-the-author-plus-70-years. In 1989, Congress removed the condition that published works must contain a copyright notice. In 1992, it removed the last vestiges of the renewal registration requirement. In 1994, many foreign copyrights were extracted from the public domain. The net result of these amendments has been that more and more copyright owners may go missing. To be sure, such revisions were enacted to protect authors from technical traps in the law and to ensure United States compliance with international conventions. But there is no denying that they diminished the public record of copyright ownership and made it more difficult for the business of copyright to function.

Ms. Peters said “The legislation is sensible: it would ease the orphan problem by reducing, but not eliminating, the exposure of good faith users. But there are clear conditions designed to protect copyright owners. A user must take all reasonable steps, employ all reasonable technology, and execute the applicable search practices to be submitted to the Copyright Office by authors, associations, and other experts.

Marybeth Peters

Register of Copyrights

The Association of American Publishers is the national trade association of the US 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.