| The concept of an orphan work, generally defined as a work whose right holder cannot be identified or located, even after a diligent search. The issue of orphan works has recently become significant primarily because digitization has changed the technology and economics of works’exploitation and preservation and the principle of automatic protection of copyright. Without the consent of the copyright owner, the direct use of works, which constitute the infringement; or prosecuted because of fear of infringement had to give up on the orphan works exploitation. Therefore the orphan works can not be public access, leading to the scope of public domain reduce and impact of the culture exchange and transmission. Patterns of exploitation of orphan works can be classified as two major modes, that is registration of license mode and tort defense mode, but both of these two modes have their owe drawbacks. In this paper, I am applying adverse passion to orphan works. This theory is merely an affirmative defense to infringement that can help the potential user find a way to use the works, after that time, however, it would constitute a complete defense to validity and produce the same results as a successful assertion of the original abandonment defense, let the exclusive rights over the work lapse to the public domain. This theory can solve most of the orphan works problem without bring some other problems such as monopoly question. |
