| Orphan Works are works of art (and other copyrighted material) that are believed or known to be in copyright but whose copyright owner is unknown or untraceable. Along with the development of social digitization, the problem of orphan works used by public is getting serious and cause the attention of the countries all over the world. To make orphan works play a role in social benefits, most countries in the world permit the use of orphan works in given conditions. Although this practice conforms to the copyright law balance between public and private right to the interests of the objective, there are still many disputes on some specific problems. Especially in our country, there is no clear rules in the copy right law for the problems of orphan works used by public. To find a good solution for the problems of orphan works used by public, we should learn from foreign beneficial experience but not mechanically accept their ideas. This paper is to study the problem of orphan works used by public according the foreign advanced beneficial claims and the condition of our country.There are four parts in this paper. The first part is the overview of the orphan works.After study the concept and types of orphan works, we point out that the key of the orphan works is its public use. Furthermore, we reveal the social and legal reasons of the orphan works problem.In the second part we talk about the legitimacy of the public use of the orphan works through the copyright law from the legislative purpose, the current copyright restrictions system and the balancing of interest. Then we conclude that the "authorized before use" is not suitable to solve the problem of orphan works used by public. We should first use the orphan works and then compensate to the copyright owner.The third part is to introduce the world current orphan works public use the solutions to your problems. And combined with the reality of our country situation by users and power that all people outside of the third person or organization intervention to determine the use and compensation standard is the most reasonable solution.The fourth part is to solve the orphan works public use problems puts forward the superficial suggestion. Including orphan works public use of the basic principle, the specific rules of the design and relevant auxiliary system. This article proposes, to the orphan works in solving the public use problem is first of all should follow is the guarantee of public access, reasonable diligence and reasonable compensation three principles. Secondly through the orphan works of two kinds of situation analysis to solve the problem of public use specific rules do a simple design. Then puts forward two kinds of auxiliary system:orphan works public use registration system and copyright collective management system. Finally wrap-up puts forward, in solving the orphan works of public use problem must uphold the copyright law legislation purpose, making work copyright holders private rights and public interest balance between. Use the orphan works at the same time must pay attention to the author’s legitimate rights and interests’protection. As for the social public interests have other owners want to use the work, to the orphan works in has been used to restrict others use. So in the orphan works public use process to the works copyright protection should also get attention. This paper emphasizes the orphans in the use of works must go through reasonable diligence searching and for the existing power all reasonable compensation. If no diligent search, and proved the work and not orphan works, then the user is malicious use of orphan works using system, constitute an infringement, user shall be liable for copyright infringement responsibility. If it works of orphan works but users without reasonable diligence search still shall be deemed to be an infringement, users also assume copyright tort liability. Although users by reasonable diligence looking for rear to use, but not to the copyright collective management organizations pay cost, even in the obligee appear still refused to pay expenses, it should undertake to pay the right holder expenses legal liability. If the oblige and the users of the payment of the amount of the fee with controversial, as previously mentioned, should first consultation, do not talk things over the copyright management mechanism for decision, if not satisfied with the results of decision may apply to the people’s court to the filing of civil litigation. |
