On The Design Of The Orphan Work System In Digitizing Environment

Orphan work is not a fashionable concept,but it has been exposed to the public in recent years because of the disputes in the Google Digital Library project.Under Google's blueprint,a large number of books will be scanned and stored in a digital format,forming a repository of knowledge that is separated from the paper carrier.This has led to a series of appeals.Meanwhile,the orphan work whose status of rights is undecided is eye-catching due to its large number and special nature.The current Chinese law couldn't solve the problem of orphan work for now.Therefore,it is necessary to use legislation to set up a targeted and scientific orphan work system.The article proposes a feasible framework for solving problems based on the characteristics of orphan work through reference to the international legislation and analysis based on China's national conditions.The first chapter cuts in from the perspective of the orphan work's definition,the problems and their causes,as well as the limitations of existing legislation,demonstrating the legislative necessity of the orphan work system.An orphan work refers to a work whose right holder's identity is unknown or unfound.It has the same value as an ordinary work,but the particularity is the difficulty to find the right holder.The traditional “negotiation-permit” approach cannot be effectively operated.The system of orphan works as a lack of legislation,the existing relevant laws are insufficient.With the development of digital network technology,there has beenexplosive growth in the use of works and the number of orphan works.Therefore,it is necessary to design a special orphan works system under the digital environment.The second chapter categorizes the mainstream models of orphan works legislation throughout the world and obtains “search-limited relief”,“search-compulsory license”,“extensive collective management-license”,“exclusive right-limitation” and “exclusive rights lost” these five ways.This article analyzes the pros and cons one by one.Based on the actual national conditions,objectives of the system,and legislative techniques,it is suggested that the “search-compulsory license” approach be adopted as the framework for the institutional construction of China.At present,Chinese copyright law has made its own draft and has also chosen the “search-compulsory license” approach,but there is a need to adjust and clarify the scope and the procedures of the system.The third chapter focuses on clarifying the applicable scope of the orphan work system,and the “revision of Copyright Law for review” is reasonable in the selection of framework.However,there are many areas can be discussed.Considered that we will not violate Chinese obligations under copyright treaties,we recommend that“foreign works” be included in the scope of application;however,the scope of application should be limited to “published works” to avoid contradictions with the right to publish;and the specific types of works shouldn't be excluded,such as photography and musical works.The possibility of being an “orphan” is irrespective.In addition,the object of search shall be revised to “the copyright holder and the owner of the original work”.Lastly,the legislative language of “digital usage” shall be deleted and replaced by “digital reproduction” and “make available to the public”.The fourth chapter aims to analyze three key steps in the use of orphan work: 1.Diligent search is the prerequisite for applying for permission,because diligence is a subjective concept,so it can only be judged from the appearance of the search approach,and the previous search results are citable;2.Licensing is the core procedure and should be applied to the agency designated by the National Copyright Administration,which will issue a non-exclusive license for a reasonable period to eligible applicants;3.Withdrawal fees is the protection of copyright holders.Theamount of fees shall be determined by the licensing agency on the basis of the general market prices provided by the collective management organizations,the nature of the comprehensive use,the scope of the license,and other relevant factors.Fees are deposited generally prior to use,but in exceptional circumstances it is permissible to use the works after payment of guarantee.If the right holder does not appear within a certain period of time after the license expires,the license fee may be used for copyright public welfare purposes.On the basis of summarizing the full-text viewpoints,the conclusion of Chapter5 discusses the appropriate legislative direction of the orphan work system.The orphan works system is a complicated procedure,which cannot be achieved promptly.It should be based on the copyright law,and the relevant rules should be used as branches.The Legislative Proposal section tries to provide an accurate and concise refinement of the viewpoint,hoping to provide experience for the legislative of the orphan works system in the future.