A Comparative Study On The Legislation Of Orphan Works

The orphan works refer to those works that the work has been still protected by copyright, but it's hard to find the author of the work, even more, we cannot find the author. In 2012, China started the third revision of the copyright law, and the orphan works were stipulated in all the public comments which are very controversial.Although, the orphan works have not been widely paid close attention to,the issues still exist. Article 19 of the Copyright Law and article 32 of the Inheritance Law have provisions on the term of “orphan works”, but it does not contain the cognizance procedures of orphan works, either no regulation on the copyright liquidation and liability of the ostensible orphan works which the right holder may appear at any time. Therefore, how to make this rule more concrete and applicable is the point we should focus on when revise the law. Thereby I think that we should be fully understanding of other countries' (regions') legislation model and legislative experience,then in the perspective of international by using comparative study of the legislation of orphan works, and summarizes each country's (region's) legislation model and the pros and cons of each legislative model. In consideration of our country legislation with combination of China's national conditions, to put forward in accordance with the reality of our country's legislation designed to solve the problem of the use of orphan works.At the beginning of this paper, I do this research with the eye of the development of the history to define the concept and related questions of orphan works. The second part of this paper is the focus of this paper. That is using the comparative method to study each legislative model and the using model of orphan works. It has been formed of several classical models, for example: the limited responsibility model of the American, the collective management system of the European Union, the legal license authorized system model of the England, and the administrative compulsory license system model of the Canada, Japan, and Chinese Taiwan. Internationally, the majority people support the principles to solve orphan works is “reasonable diligence to find” and“reasonable compensation”. And the next part of this paper, it is stated that the stage of the development of orphan works in our country and study the similar regulations about orphan works specific. It is also do generalization and summarization vertically of the Law of Copyright of the Qing Dynasty, that is before the Berne Conventionepoch, and the Berne Convention epoch and Berne Convention epoch with the digital information age. At the end of this paper, after generalization and summarization of each country's (region's) legislative model, this paper through comparative method to find out the best way to manage the orphan works that I propose one way which combined with the situation of China is that we cannot use only one model instead should treat different work use different ways. This will reach the goal that to make full use of the orphan works and Conform to the Copyright Law intent.