Study On The Legal Issues Of Exploitation Of Orphan Works

Orphan works are those works that are in the copyright protectionperiod, and their copyright owners are unknown or even the owners are knownbut can not be located to discussing the use of works. When the potentialusers cann’t obtain the licence lawfully, they may face an impasse:either give up the use or use the works as infringers, but both are notthe good ways to protect or disseminate the orphan works.With the development of the digital technology and the emergence ofnew business model, the United States, the European Union and othercountries pay great attention to the plight of the exploitation of orphanworks, and they began to seek solutions both on legislation and practices.On the contrary, domestic scholars and relevant industry have not payenough attention to the issue of orphan works, and the legislation is stillvacant. Although the term of “orphan works” is arised from America andour country do not have this concept, it is an indisputable fact thatorphan works exist objectively in China. As thus, study on the legal issuesof exploitation of orphan works has important practical significance.This article is divided into four chapters:The first chapter is an overview of orphan works problem. It clarified the exploitation range of the orphan works after defining the term. Itindicated that the exploitation range including the works that theircopyright owners are known, but can not be located, and the range limitedto the published works. According to the analysis about the causes of theorphan works, it pointed out that insufficient information on copyrightand the development of the digital network are the external causes, andnational laws accepting the principle of copyright automatic protectionis the root causes. And then, it discussed the plight of exploitation oforphan works according to the intuitive data, and put forward theimportance of the public access to orphan works.The second chapter analyzed the orphan works under China’s copyrightlaw in order to clarify the deficiencies in the legislation. This chapterindicated that study on the legal issues of exploitation of orphan worksis necessary, because orphan works exist objectively in China. Afteranalyzing the legislation related to orphan works, it indicated that thescope of “works of unidentified authors” are narrower than orphan works,and the rules established in the existing legislation are unscientific.This chapter also discussed the mechanism of copyright “remunerationtransfer” implemented before, and concluded that this mechanism can notsolve the exploitation problem of orphan works.The third chapter compared different exploitation modes of orphanworks in foreign and other jurisdictions, and then it pointed out thesimilarities and differences between them in order to provide referencesto establish our China’s pattern for exploitation of orphan works. Everyexploitation modes emphasized that “reasonably diligent” search todetermine the “orphaned” status is the precondition for use,whilereasonable compensations to rights holders is the economic condition foruse. And every exploitation modes are different in the systems and thelegislative models. The fourth chapter discussed the choice of exploitation modes oforphan works in China. According to the analysis about the lawful use modes,use principle and other considerations, it combined the use modes inforeign and other jurisdictions with China’s practice, and then putforward the suggestion on exploitation modes of orphan works in China.It proposed that introduced the statutory authorization system except theexisting fair use and statutory licence.