Sdudy On The Tort Action Of Unclaimed Copyright

Copyright is a legal system which adjusts the personal and property relationships between authors, users and spreaders of works in the creative field. Judicial protection of copyright is of great significant to simulate the creation and dissemination of knowledge, and is ultimately conductive to the development of society. As the result of owner-less, infringements to the unclaimed copyright occur usually, and disorder the knowledge industry. Although the tort action is an important way to protect the unclaimed copyright, there are imperfections of the proper party and the object of litigation in the legislation and juridical practice in China. Therefore, the tort action can barely provide protections to the unclaimed copyright. According to this situation, this text mean to perfect the tort action of unclaimed copyright with integration of the legal principles of copyright law and fundamental theories of procedure law, hoping to provide better protections to the unclaimed copyright.This text is divided into four parts, and the basic components are as follows:The first part is an overview of the unclaimed copyright. The copyright went through three stages from administrative authorization to a property right adjusted by civil law, to a comprehensive right combined personal attribute with property attribute. The copyright with the modern meaning protects the author's mental rights, encourage creations, promote the dissemination of knowledge, and maintain balance between the author's right and the social benefit. The carrier of the unclaimed copyright is orphan works, which is the result of the non-correspondence between the terms of protection to copyright and the existence of copyright owners, and the complexity of the author's personal information and so on. The unclaimed copyright include real, apparent and pretending states.The second part is an discussion of the legal principle of the unclaimed copyright tort action. Litigation provides protection to rights. A suit is composed of parties and object of litigation. The tort action of unclaimed copyright is a suit that the subject of rights appeal the infringing party to stop infringing, eliminate effects, and indemnify for a loss. It includes the tort action of real unclaimed copyright and apparent unclaimed copyright.The third part is the proper party of the unclaimed copyright tort action. The proper party theory is an answer to the question of who is the suitable party of a suit. In the juridical practice in China, direct interest relationship is the standard of proper party. The legislation of proper party of unclaimed copyright tort action is confused. And the accuser is lack of protective capacity and absent. Therefore, modification of legislation is necessary. First of all, the proper plaintiff of real unclaimed copyright is the National Copyright Administration. Secondly, an extension of the owner of original work is necessary. Thirdly, in the apparent unclaimed copyright tort action, the publisher is allowed to be plaintiff if the owner of original work is absent.The forth part is the object of litigation of the unclaimed copyright tort action. There are different opinions about the identification of the object of litigation. The theory circle in China hold the opinion of relativity of the object of litigation. Generally speaking, the traditional substantive law theory is used in juridical practice. However, there are conflicts between traditional substantive law theory and double-character theory in the tort action of copyright, especially in the situation of composite infringement. According to the principle of copyright law, the author holds the opinion of traditional substantive law theory in the apparent unclaimed copyright tort action. On the other hand, double-character theory applies to identification of the object of litigation in the real unclaimed copyright tort action.