On The Reasonable And Diligent Retrieval System For The Utilization Of Orphan Works

With the development of digitalization,while bringing convenience to people's lives,it also challenges the law.Orphan works are the product of the development of digitalization.The infringement case of Google company,which attracts worldwide attention,has attracted the attention of most countries.Many countries and regions have legislated to regulate the use of orphan works.The discussion of orphan works in the United States and Canada has never stopped.The United States has always attached great importance to the protection of intellectual property rights,and has been paying attention to orphan works for a long time.Bills were enacted in 2006,2008 and 2015 to protect orphan works under the "limited relief model",which will provide reference for future legislation and other countries' legislation.EU member states also adopt a "combination of compulsory licensing and collective management"mode to protect orphan works through the formulation of directives.The United Kingdom,as early as 1988,introduced a "statutory licensing model" through special legislation to regulate the use of orphan works.Canada,Japan and Korea adopt compulsory license mode to protect orphan works.In China,the number of orphan works is especially large because of the long duration of copyright protection,anonymous publication,lack of copyright information and the unique national conditions of our country.However,there is no legislation on orphan works in China so far,but there are provisions similar to "orphan works" in the Regulations on the Implementation of Copyright Law,until the latest "The Copyright of the People's Republic of China" The Orphan Works are only mentioned roughly in the Power Law(revised draft submitted for review),(hereinafter referred to as "submitted for review")Although this kind of works is not explicitly named as "orphan works",referring to the legislation of other countries on orphan works,51 articles are the provisions of orphan works.Orphan works are defined as works which can not confirm the right holder or which can not be identified but can not be contacted in the submission for review.The definition of orphan works is very close to that of other countries.In the digital age,the unauthorized "orphan works" have been put on the shelf,and how to define "orphan works" is the core issue.This definition puts legislators in a dilemma.It may also cause disputes when the obligee reappears.In order to solve this problem,various countries have explored,searched for its solution mechanism,and put forward unique provisions.But looking at the countries around the world that legislate on orphan works,no matter what mode,they all include the "reasonable and diligent retrieval system" as the premise of using orphan works.On the one hand,the system protects and respects the relevant rights holders,on the other hand,it promotes the use of orphan works.However,in most countries,the principle of "reasonable and diligent search" is only stipulated,which is of little significance in practice.What kind of search is "reasonable" and "diligent"?This paper intends to use case analysis method(through Google infringement case leads to orphan works),comparative analysis method(by comparing the relevant legislation of orphan works around the world,analysis of the advantages and disadvantages of various models)and normative analysis method(through the existing mode of preliminary determination of draft submission in China,analysis of the shortcomings of relevant provisions in China,and propose solutions)and other methods,combined with orphans.All kinds of problems encountered in the practice of children's works try to improve the system of"reasonable and diligent retrieval" of orphan works in China's manuscripts submitted for examination.This paper is divided into five parts.The first part is an overview of orphan works.Starting from typical cases,this paper draws out the problems of orphan works,defines "orphan works" in combination with related issues,and analyses the causes of orphan works from two aspects of social system and legal system.The second part analyses the legislative origin and necessity of the reasonable and diligent retrieval system,and the importance of the reasonable and diligent retrieval system from three aspects.The third to fifth parts are the focus of this paper.There is no formal regulation of orphan works in China.Therefore,the third part of this paper focuses on the analysis of countries that have great influence on orphan works in the world,such as the United States,the European Union,Canada,the United Kingdom and Japan.Through the analysis of their national conditions and legislative mode,the author compares their advantages and disadvantages,hoping to provide reference for the formal legislation of orphan works in China.The fourth part is the current situation of legislation in China.Starting from the submission of manuscripts for examination in our country,this paper first bases on the relevant provisions of orphan works in submission for examination,then analyses the specific relevant provisions of the revised draft of Copyright Law for submission for examination,and analyses its shortcomings.The last part carries on the above,analyses the considerations in the legislation of "reasonable and diligent retrieval system",and gives suggestions on how to improve the legislation of orphan works.It includes distinguishing the subject of use,defining the object of orphan works and how to achieve "reasonable and diligent retrieval".The author hopes that the above contents can provide ideas for the protection system of orphan works in China...