Construction Of Orphan Works Protection System

Based on the new provision of “orphan works” in the revised draft of “Copyright Law”, This article begins with the concept of orphan works itself, combined with an overview of domestic and other countries’ legislations and practices, then to make some improvement to refine our orphan works system. The article can be divided into four parts.The first part is an overview of orphan works. Many countries, institutions and organizations, have elaborated the definition of orphan works, and through them, we can roughly get a well-received definition; The reasons why countries(including our own) are strengthening orphan works’ legislation is determined by the contemporary particularity and necessity of the protection of orphan works; The forms of orphan works’ existence are also varied, and those forms will help us to understand the problem of orphan works better.The second part takes some countries and regions for examples, briefly analyzing the current main orphan works protection mode, paving the way for us to improve Chinese relevant systems. This part introduces the Google "digital library" program in United States in 2005, then described the contents of Google settlement agreement, which can be regarded as orphan works’ a milestone event in promoting legislation. Through a brief analysis of the U.S. limited liability statutory licensing model, the European model and Canadian administrative compulsory licensing model, we can realize the pros and cons of various legislative models.The third part is about the current provisions of the existing legislation, including the regulations elaborated in the draft and the legislative model we wish to take. This article analyzes how to use the existing provisions to solve the problems in relevant cases involving orphan works in ChinaThe last part is about a number of issues need to be explored and the problems needed to be solved in the draft., including how to define "the effort of finding but no fruit" standard, the scope of the protection of orphan works, the use of orphan works, user’s rights and obligations and the mode of paid before use. Through the study of the above questions, I hope this article can provide some ideas to improve our protection system of orphan works.