A Study On The Problem Of Using "Orphan Works" And The Solutions To It In Copyright Law

The term "orphan works" is defined as copyrighted works whose owner(s)cannot be identified or located.The concept consists of two core elements:(1)the work is under copyright protection;(2)the owner cannot be identified or located.Two inferences can be made:(1)works whose owner can be contacted but did not respond or refused to give license fall outside of the scope of orphan works;(2)where the copyright are co-owned by two or more individuals,the work is deemed as orphan only is none of them can be identified and located.The term "orphan works" became known with the famous "Google Library Project"launched around 2005 and the notable legal disputes thereafter.It can be argued the brunt of the orphan works problem is felt only until rapid development of digital technology and the internet made it possible to utilize and exploit the cultural heritage resources.The rise of large-scale digitalization has revealed the sheer volume and licensing obstacles of orphan works.The problem of works becoming orphans and their utilization obstacle derive from the strategic behaviors of copyright owner.Institutional arrangements and societal practical factors change a bounded ratioanl copyright owner's behavior by altering the cost-benefit calculation.Lack of incentive for copyright owners to announce copuright-related-information is the key cause of works become orphans.The problem of utilizing orphan works derives from information asymmetry and institutional dependence which create conditions and incentives for copyright owners to implement the post-event opportunism.The essence of this problem is the Hold-Up Problem identified by neoinstitutional economists which is described as a deterring effect on exploitation and investment made to the orphan works caused by potential users trying to avoid being overcharged by the re-surfacing copyright owners.In such a situation,the fixed investments made by uses in a potentially infringing use could be held by the re-surfacing copyright owner as leverage.The harm,as in other cases of hold-up,is the deterrence of productive and beneficial use of cultural resources comprising potential orphan works.Viewed from this perspective,it could be argued that another phenomenon lately emerging in copyright context referred as "copyright trolls" has the same essence and roots as the problem of using orphan works.Solving the problem of using orphan works is vital to the preservation,dissemination and utilization of cultural heritage,the enrichment of public domain,the realization of cultural diversity and cultural democracy,as well as the promotion of the construction of digital libraries.Many countries and regions have enacted or are in the process of revising legislation in order to ease or solve the problem of using orphan works.There are four major regulative regimes,namely the "Extentive Collective Licensing"regime,the "limitation of Copyright" regime,the "Compulsory licensing" regime,and the proposed legislative regime of "Limitaion of Remedies".These sulotions to problem of using orphan works all work as an extra mechanism to alter the cost-benefit calculus of copyright owners' tendency of opportunistic behavior,accordingly reduce the hold-up risk faced with by users of orphan works.The comparative study of extraterritorial legal practice indicats that each regulative regime has its own advantages and disadvantages.The effectiveness of these regulative regimes is highly related to the development of copyright-related industries in specific social background,such as legal system and cultural tradition.While the advantages outweigh the disadvantages in its original system,it coule be other way around when being transplanting to other jurisdictions with blindness.There is seriously inadequace of mechanism to solve the problem of using orphan works in current copyright law system of China.During the third revision of the Copyright Law,China has made a positive response to this problem for the first time.In the submitted draft published in 2014,drafters add a principle provision aiming at solving the problem under a quasi-compulsory licensing regime.However,there is still a pressing need to formulate detailed implementing rules to make the principle provision operable and practival.On this occasion,it is of practical significance to choose orphan works and its regulation as the topic of research.When refining and perfecting relevant legislation of quasi-compulsory license system,we should give adequate consideration to the characteristics of the multi-use of works in the digital age,that is,large scale profit making and public welfare,answer to needs of individuals and entities making digital uses of works.The appropriate level of rights and duties should be tailored to the following factors in China:the development of copyright industries,the operation of copyright law system,the development level of relative technology,and the construction of information infrastructure.To be specific,the design of a quasi-compulsory license system should include the following aspect.(1)Braoded the application scope of quasi-compulsory license system without conflict with the legislative concept of copyright law in China.(2)Use the term "search with reasonable efforts" to define valid search by the would-be users.Apply "criteria model" to determine the validity of search in order to impose different level of effort to users according to their identity natures and the ways of using works.Users are required to act up to good-faith principle.(3)Limit the compensation copyright owners can claim.Establish the license fee payment mechanism with escrow as the principle and escrow as the exception.Set the limitation period for re-surfacing copyright owners to claims compensation in order to force them declare ownership without delay.(5)For the protection of users'realiance interests in using orphan works,copytight owners should not be allowed to ask for injunction remedies in the term set by license.(6)Users are required to perform duties of attribution and mark for the sake of authors ans copyright owners of the works.Some cutting-edge applications of digital technology can be used as tools and mechanism to reduce cost stemming from operation of quasi-compulsory licensing system.Blockchain can play a role in keeping search record untamable,serach records and other information sharing,as well as automatically dealing with eschow and transer of licensing fees through smart contract.However,blockchain can neither verify the authenticity of the data put up to the chain nor motivate people to provide data to it when there's no extra incentive.It is an attractive idea to use artificial intelligence to perform right clearance task.However,current weak artificial intelligence is not capable of completing complex legal or factual reasoning.It needs guidance and correction of human experts.To relieve the burden of human experts,users can run a crowdsourcing project,i.e.break the searching task down to smaller tasks suitable for individuals in the network community to fulfill.