A Study On The Orphan Works Problem Under Copyright System

Research on orphan works in China is still a relatively new field, only with the Google Print Library Project is sued for infringement, more and more people are concerned on orphan works problem. Orphan works has existed for a long time, but the demand for huge amounts of data in the digital age make this problem more serious. It's very inconvenient for the user to obtain the authorization from the copyright holders of orphan works, even impossible in some cases. Therefore, it is necessary to find a feasible solution for using orphan works effectively. At present, research on this issue in China is little and the most are similar, this paper disicussed the issue of orphan works on a more comprehensive and in-depth study.This article is divided into four chapters. The first chapter is an overview of orphan works problem. First of all, it clarified the concept and scope of orphan works, than conducted in-depth analysis of the causes, revealing that there has some intrinsic reasons why the orphan works problem expoilt suddenly in the digital age and attract more and more attention.The second chapter started with that the orphan works need to be revitalized for the purpose of balancing interests of every party of copyright law. Then it compared the property rule and liability rule, and supported by the balance of reducing the high transaction costs of orphan works and incentivizing the public innovation, revealing that the traditional property rule which the user of one work should get the perssiom of copyright owner first does not apply to orphan works problem today, and the use of orphan works should be shift to liability rule, which permit the user use the work without the authorization of copyright holders, but the use should compensate the copyright holders later. Further this part discussed the specific criteria under liability rule should be decided by legislative method, judicial method, or private method, summarizing that the third private party valuating the compensation is the best choice.The third chapter analyzed the case of Google Library Project, which impacts the morden copyright law significantly. Firstly, this part elaborated on the complexity of orphan works problem in the digital age, then reviewed the solution provided by the settlement agreement which suggested the establishment of a management system of orphan works with the core of a neutral Rights Registry. But the settlement agreement aslo be faced with the antitrust issues, this part aslo deal with this problem. Finally, this part take the settlement agreement as a very effective way to manage the orphan work, considering that it was formed spontaneously by the market. Secondly, this chapter aslo introduced the U.S. "Orphan Works Act of 2008 " and analyzed the limited remedy system it proposed. After comparing the settlement agreement with the "Orphan Works Act of 2008 ", it was found that the settlement agreement must be a more effective method. The end of this part, how the other countries resolve the orphan works problem was discussed, after the analysis of the pros and cons of various solutions, this part summarized that private third-party organization as an institution to manage the trading of orphan works is a suitable option.Finally, this article discussed in detail of the orphan works problem in China. Although there is no concept of orphan works in the copyright law of China, the status of copyright legislation and social environmental factors determine that the orphan works problem also exists in China, there are many works out of touch with the copyright owner. Followed by was an analysis of the similar concept of orphan works in Chinses copyright legislation. Then this part pointed out that the provisions of the Copyright Law are unreasonable in some aspects, it also gave the recommendation about how to modify the law. Finally, by drawing on the various solutions on the merits and relying on existing laws in our country, this article proposed some effective solutions to the orphan works problem, including the strengthening of copyright collective management organizations, the establishment of licensing system and filing system, fixing the definiton of"reasonable diligent search"and the standards of licensing and compensation.