Research On The Licensing System For Orphan Works

An "orphan work" refers to a work whose identity information is difficult to determine during the copyright protection period,or whose identity is clear but cannot be contacted after diligent search.This concept category is based on the copyright owner.It covers two situations: "identity information is unknown" and "identity is unconnected",which is different from the existing concepts of "anonymous work" and "ownership work".There are a large number of orphan works in China with actual use requirements.Infringement cases caused by the use of unidentified works have appeared in judicial practice,but China has not yet issued legal regulations specifically for orphan works,which has caused difficulties in the use of orphan works..Analyze the status quo of China's legislation.The provisions concerning issues related to orphan works include only works with no rights and obligations,and unidentified works.However,the provisions stipulate that the scope of applications involving orphan works is relatively narrow and does not cover the entire scope of orphan works.From the perspective of copyright holders' rights transfer,the provisions of the main body of enforcement are vague and ignore the issue of potential users.The use of orphan works cannot be authorized through ordinary licenses,but China's existing statutory licensing system and fair use system have their limitations,and it has not been able to comprehensively solve the licensing problems of orphan works,coupled with the mode of relief of ownerless property in China's current judicial practice It cannot be fully applied to the problem of orphan works infringement litigation.The subject of the lawsuit is unknown,and the judicial procedures are unknown.The existing system cannot comprehensively solve the problem of licensing of orphan works.Drawing on the existing international orphan work license system,the "compulsory license model" proposed in Article 51 of the Copyright Law(Amended Draft for Review)is to complete the license use of orphan works through the "application-authorization-deposit" process.This model is in line with China 's basic national conditions and has certain feasibility,but the existing regulations are more principled,and the specific content still needs to be improved.It is recommended to clarify the types of works to which the system applies: include unpublished works,foreign works,and do not exclude specific types of works.Drawing on foreign advanced legislative experience and combining with China's specific national conditions,based on the compulsory licensing model,and adopting a legal licensing model for large-scale "digital copying" of special subjects such as libraries,"enumerated" and "type work standards" can be used to clearly and diligently The scope of the search shall be limited,the works shall be limited,and the orphan works license shall be coordinated and managed by the administrative agency.The rules for payment of orphan works license fees shall be determined in accordance with the purpose and mode of use and referring to the general ordinary license fee standards.