On The Binary Utilization Model Of Orphan Works

Orphan works refer to works that has not been explicitly entered into the public domain,but has been diligently searched by the user,but is still unable to identify or find the copyright owner.With the further development of the research on the construction of digital library,the use of orphan works has begun to expand into the field of large-scale digital use.The extension of the collective management model can solve the use of individual rights of orphan works at the copyright level.The combination forms a binary utilization model.In order to solve the problem of the use of orphan works,in addition to the compulsory license model of the third revised draft of copyright for review and transplantation,China has also established a general extended collective management clause to retain the possibility of large-scale digital use of public cultural institutions such as libraries.Through the type analysis of the existing foreign legislation,it is found that in addition to the two approaches of case-by-case and large-scale use legislation,it can be further subdivided into orphan works legislation,out-of-print work legislation,and copyright single rights legislation.Compared with other case-by-case utilization methods,the compulsory licensing model is adopted with the best legal certainty and scope of application,but it is insufficiently applied in practice,mainly due to imbalances in user rights and obligations,and insufficient incentive effects.The issue of legitimacy is relatively large,and it is not feasible to transplant under the current situation of China’s collective management organizations.The perspective of large-scale use has been changed from a single copyright to an orphan work whose compulsory license has not been renewed and that the rights holder has not received the copyright fee expiry period.A statutory collective management model has been proposed.Large-scale use,including digital reproduction rights and network information dissemination rights.This model has less damage to the interests of right holders,and has less impact on China’s collective management organizations,and can achieve a smooth transition.In order to promote the scale effect of the legal collective management,and at the same time,the model of the compulsory license should be localized,so as to increase the incentive to the users,and finally build an effective dual use model of orphan works which combines the compulsory license and the legal collective management.