A Study On The Utilization Of Copyright In Orphan Works

The use of orphan works is known as one of the "tragic problems" in contemporary copyright law.Under the traditional authorization mode,the exploitation of works requires direct or indirect authorization from the copyright owner.However,orphan works refer to works that are difficult to identify or cannot be found by the copyright owner and are still within the protection period,so they are used in the absence of the copyright owner,which cannot adapt to the traditional licensing model,and there are restrictions on the use.Such restrictions will lead to the sealing of the intrinsic value of orphan works,resulting in a great waste of cultural resources,and also hindering the spread and innovation of culture.Our country has made a legislative attempt on the use of orphan works during the recent revision of the Copyright Law,but unfortunately,the relevant legal provisions about orphan works have not been passed.The theoretical exploration of the use of orphan works still requires the participation of more scholars.Only with extensive research as the cornerstone can a sufficiently mature system be produced to solve the problem of orphan works.This paper takes the utilization of orphan works as the theme,and analyzes the dilemma of the utilization of orphan works from the perspectives of legislative provisions and existence present situation.It proves the necessity of using orphan works.This paper holds that a systematic and complete utilization system should be built to solve the problem of orphan works utilization.First of all,clarifying the boundaries of use is the basis for the use of orphan works,and the different viewpoints on the subject and object of use blur the scope of use of orphan works,resulting in obstacles to the use of orphan works.The diversification of the subject of use can ensure the full use of the intrinsic value of orphan works,and meet the needs of copyright innovation and development.The two controversial issues of the objects of use should be clarified.The scope of application should include foreign works to adapt to the development trend of globalization,and unpublished works should be conditionally excluded to in order to protect the rights of publication and privacy.Secondly,it has become a consensus stipulation in the practice of various countries that users need to diligently search for the copyright owner before they can use orphan works.Our country should also reasonably set diligent search as the premise for the use of orphan works in the construction of the system for the use of orphan works.The value of this obligation should be cleared from the microscopic and macroscopic level.And under the guidance of the principles of good faith,reasonable diligence,and difference,the specific content of diligent search is reasonably designed.Thirdly,constructing a suitable utilization mode for our country is the core of the utilization of orphan works.Through the reflection of the extraterritorial utilization mode,combined with the current situation of our country’s system operation,this paper proposes to adopt a two-tier authorization mechanism of "compulsory license + quasilegal license".Distinguishing between commercial and non-commercial uses can better take into account efficiency and quality,and ensure the rationality and sustainability of the operation of the system.Finally,the use of orphan works is essentially a restriction on copyright.Therefore,under the principle of balance of interests,a utilization relief mechanism centered on the copyright owner should be established.Establishing rules for the protection of copyright owners’ rights and interests about reasonable compensation centered on royalties and handling of reappearance of copyright owner’s objection.In the setting of specific rules for royalties,the goal is to optimize the utilization of orphan works,and to ensure that the copyright owner can obtain compensation as much as possible.To protect the reasonable objection rights of copyright owners,establish a multi-objection handling mechanism from the perspective of licensing and the amount of royalties.