Study Of Legal Issues On Exploitation Of Orphan Works

In a general sense,copyright is the private right of copyright owner,which in most cases is not allowed to be used arbitrarily without the permission of right owner.This aims to protect the right of copyright owner.The original intention of copyright establishment is to encourage the positive development of cultural innovations by granting corresponding rights to copyright owners.However,as the works circulate constantly,it is difficult to find out copyright owners for many works for a variety of reasons.As a result,there are massive orphan works that face the difficulties in seeking the authorization of copyright owner when an attempt is made to recreate these works.Orphan works mean the works whose right owners cannot be found after reasonable and diligent search or copyright owners cannot be contacted though their names are known after being searched.The existence of orphan works has given rise to the irreconcilable interest imbalance between the private right of copyright owner and public right of social public domain.As the rapid development of internet technology accelerates information exchange and communication,the construction plan of digital library has captured increasing attention of countries worldwide.Nevertheless,the large numbers of orphan works have severely hindered the establishment of digital library,because of which countries worldwide gradually shift attention to the use of orphan works.Compared with China,other countries make a deeper exploration on the application system and mode of orphan works.Influenced by Google’s digital library plan in 2004,the United States explored the application system of orphan works first,successively enacting two Orphan Works Acts in the hope of addressing the application problem about American orphan works by dint of restricted relief mode.However,the two acts failed to be passed.While studying the application problems of orphan works,EU focuses attention on the public interest organizations with a view to building a digital library suitable for the whole Europe,as compared to the United States with commercial needs.As regards the application of orphan works,the countries like Canada and Japan resort to a compulsory license mode that keeps the orphan works first and then uses them.Multiple theoretical modes have provided references for China to address the application problems of orphan works.China has been facing the problems of orphan works for a long time.The frequent modifications of Copyright Law of the People’s Republic of China have gradually revealed the importance of the problems about orphan works.According to the analysis on the development course of relevant legal systems about orphan works in China and existing legal provisions,China’s legislation only makes the provisions for the " author’s unknown identity",without specifying how to deal with the difficulties in contacting the authors known.Thus,the legislation is not comprehensive.China’s 2014 amended draft of Copyright Law has capitalized on the experience of western countries and the compulsory license mode resembling those of Japan and the United States based on domestic legislative background.However,relevant provisions in the draft are only principled provisions that are difficult to implement in practices.In combination with the analysis on the application systems of orphan works in different countries,this paper tries to build an application system of orphan works consistent with China’s national conditions based on relevant application principles of orphan works.The principles including interest balance,diligent search and consistency with international convention prove to be the basic application principles of orphan works.Based on the implementation of the abovementioned principles,this paper draws inspirations from the experience of foreign countries,suggesting that a mode which combines compulsory license with statutory license of special subjects should be built in China at present stage.Meanwhile,it is advised that China’s legislative details and juridical procedures should be improved to build a sound copyright management system and implement the legal system for the purpose of publicizing the extended collective management mode of copyright and addressing the application problems of China’s orphan works.