A Study On Legal Issues Of The Orphan Works In Mass Digitalization

"Orphan Works" is a term used to describe the situation where the copyright owner cannot be identified or located after reasonably diligent search by someone who wishes to make use of the work in a manner that requires the permission of the copyright owner. As a completely original concept in the Chinese legal history, it is prescribed, although quite generally and ambiguously, in the third amendment draft of Copyright Law of the People’s Republic of China. In practice, the amendment draft lacks the Reasonably Diligent Search Rule, the legal system of the rights and obligations of the digitalization of the Orphan Works and the disputes settlement system during the digitalization. In theory, the digitalization of the Orphan Works referring to both traditional and digital property, as a result, it relates to the multiple problems such as the motivation of the digital technology, the development of the cultural industry, the respect of the authors, the prevention of the "cultural pirates" and the protection of cultural resources. This thesis attempts to probe into the adequate definition of the Orphan Works, and strives to research on the establishment of the ownership of the digitalization of the Orphan Works and the disputes resolution system during the digitalization. The thesis is divided into7Chapters and endeavors to systematically analyze the legal problems of the digitalization of the Orphan Works.Chapter I builds the foundation of the whole thesis. It defines the concept of the Orphan Works and analyzes the relationship with other terms such as unpublished works, works in public domain. It then proposes that, rather than separate the Orphan Works with the traditional cultural expressions, the legal system of the protection of the authenticity of the traditional cultural protection, the participation encouragement of the commercial users, the benefits allocation system of the indigenous people, and the ADR dispute settlement system should be established. As the object of the digitalization of the Orphan Works includes the metadata, raw data, manipulated data and the creative works, the organization of the ownership system should be specified.Chapter II focuses on the core concept of the digitalization of the Orphan Works, which is the Reasonably Diligent Search Rule. It proposes the legal nature of, defines the concept of and analyses the scope of the Reasonably Diligent Search Rule. Then, it illustrates the registry rule including the registry institution, the registry contents, the legal results of the registry and the remuneration rule after the reasonably diligent search. After that, the erroneousness of the lack of the cultural consideration in the Reasonably Diligent Search Rule is set forth and the approach for improvement is recommended. The exceptions of the Reasonably Diligent Search Rule such as data-mining, thumbnail images and intermediate copy are illustrated at the end of this Chapter.Chapter III analyzes the ownership and originality standard of the digitalization of the Orphan Works. Firstly, it comments the opposite theory, protection theory and creation theory, of the relationship between the digitalization and the protection of cultural resources. Secondly, it considers the originality standard in the digital environment and selects the doctrines and principle in the judicial practices in the us such as the principle of creative process, the principle of the participation of natural person, the principle of filtering, the doctrine of inequivalents, the doctrine of value-adding and the doctrine of equivalents.Chapter IV illustrates the database rights of the creators of the manipulated data during the digitalization of the Orphan Works. Lock-in theory and Long Tails Theory are used to argue for the possibility of the database protection. The drawbacks of other protection mode such as protection by compilation rights, copyright and Anti-unfair Competition are listed. Then the establishment of the database rights protection of the digitalization of the Orphan Works is suggested.Chapter V researches on the similarity of between the digitalization of the Orphan Works and the resale rights (droit de suite).Then proposes the formation of the resale rights mode of the digitalization of the Orphan Works.Chapter VI summarizes characteristics of the disputes during the digitalization of the Orphan Works, suggests that the ADR dispute settlement should be established for the domestic disputes during the digitalization of the Orphan Works. As for the complete dispute settlement procedure, the professional experience of the disputes of the domain names, the successful cooperation with the international collective management society, the lasting and comprehensive efforts on the protection of the traditional cultural expressions, the trans-national disputes during the digitalization of the Orphan Works should be settled by WIPO.Chapter VII proposes the drawbacks of the recent regulations and the third amendment drafts of the Copyright PRC referring to the Orphan Works, concludes the opinions analyzed in the prior chapters and make recommendations for the legislation of the Orphan Works in China.