Exploration Of The System Of Using Orphan Works

A work shall be considered as an orphan work if the right holders of the workcan’t be identified or can’t be located when identifiable despite a diligent search.The will-be users of orphan works can’t be permitted to use the works because theycan’t get in touch with the right holders. Thus the will-be users either give up usingthe orphan works, which will cause the waste of culture resources, or use themdirectly, which will result in the risk of being accused for infringement. Facing thisdilemma, the United States started to discuss the orphan works problem as early asthe year of2005, and has continues endeavored on legislation ever since. Canada andJapan have pioneered in legislation to deal with the problem. The European Unionlaunched the relevant legislation work recent years and made some achievement.And in our country, people have already started to focus on the orphan worksproblem. Motivated by this background, this study aimed to state the orphan worksissue, analyzed the dilemma of using orphan works, evaluated the advantages anddisadvantages of different models of using orphan works under comparative view,and probed in to how the law should be enacted in our country.This paper is comprised of three chapters.The first chapter made an overviewstatement of orphan works problem. Firstly, it explained the definition of orphanworks. Then it analyzed the causes of orphan works, from both provision and socialenvironment perspectives. Lastly, the chapter stated the dilemma of using orphanwork. The first dilemma is the uncertainty which the will-be users faced with. Thesecond is that there is no regulation to resolve the problem. The third is the conflictsof interests among the right holders, users and the public.Through law comparison, the second chapter, evaluated and analyzed theexisting models of resolving the orphan works problem form three aspects, the background, the provision and the advantages and disadvantages. The first model islimiting remedies model although the behavior of using orphan works violatesthe copyright of right holders, the remedies of right holders will be limited by law.The United States once issued three proposal of act which adopted the limitingremedies model between2006and2008. The second is compulsory licensemodel requiring the competent authority to approve the compulsory license andusers of orphan works to deposit fees. Canada and Japan adopted this model. Thethird is statutory model. This part introduced the model through Orphan WorksDirective issued by The European Union. The Directive permits nonprofitorganization like library to use orphan works when digitize their collections in theserve of public interest. The forth model is based on extended collectivelicensing the power of copyright collective management organization is extendedby law. The organization can permit the use of orphan works on behalf of the rightholders on certain condition. Some Northern Europe countries adopted this model.The third chapter explored how to build a system of using orphan work in ourcountry. Firstly, the problem about the orphan works under our copyright law waspointed out. Then it made a conclusion that we should choose the compulsory licensemodel by considering the model’s compliance with the international treaties, themodel’s suitability for state of our country and the predictability of the model. Inaddition, the chapter advised to adopt statutory license to deal with the orphan worksproblem in digital engineering. At last, some provisions of the system was specified,for example, defining the scope, clearing the calculate method of the fee andcompleting the matching institution.