On The Use Of Orphan Works

Orphan works refer to works the rights holder of which cannot be located. When will-be users cannot obtain lawfully license, they may face an impasse:either give up or use as an infringer. The frozen and waste of social resources caused by orphan work have been paid great attention by America and European countries. Several proposals and bills have been posted, and they can be divided into two catalogues:one is to legalize the unapproved usage of orphan works; another is to limit the range of remedies rights holders can enjoy.Three methods can be found in the first catalogue:the compulsory license(exception),the extended collective license, and the combined one which shows the features of both. The main defect of the compulsory license is that it may conflict with the requirements in the international conventions. The extended collective license can be adopted on the condition that the collective organization has represented substantial quantitive right holders in the relevant field. Chinese collective organizations may not be able to meet such condition. The combined method proposed by EU, although shares the features of the former both, may only be applied to the situation of work digitalization for preservation. Alien from the foresaid methods, the2008American Bill of Orphan Works becomes the second catalogue:The users who cannot obtain the lawful license are infringers. However, rights holders'remedies shall be limited, including monetary relief and injunction relief.It is believed in this article that Chinese legal system for orphan works may consider the American method to limit the rights holders' remedies. Meanwhile, the rights holders'interests shall also be concerned to keep the balance. The will-be user shall perform sever prior obligations: diligent research, recording the using information in the collective organizations, providing certain deposits. Those obligations are set to ensure the bona fide of users and protect the interests of right holders. In a non-legal way, the copyright databases shall be emphasized and right holders shall be encouraged to voluntarily register their works in the database.