The Research Of The Orphan Works Problem

Orphan Works refer to the works the rights holder of which cannot be precisely located, means-while the works are still protected by copyright law. Due to the absence of copyright owners, the would-be appropriators cannot get lawful license. They will encounter a unexpected dilemma:either give up use the work or to be infringers. This situation will obviously cause the frozen and waste of copyright resource, which goes against the legislative purpose of copyright law.With the development of digital and international technology, the problems evolving Orphan Works, especially the digital museum, have led to wide discussion and study. For instance, USA and EU have drafted the acts on Orphan Works problem. Although there is no concept of Orphan Work in current Copyright Law of China, the problem has taken the attention of academics and legislators. The related terms of Orphan Work are added into the two version of Copyright Law draft (third revision) published in2012, but the provision is too simple to solve the complicated Orphan Works problem. So based on the draft, perfecting the copyright system of Orphan Works in China is an imperative and urgent task.In this paper, the author will discuss the Orphan Works problem completely and analyze the nature of the problem thoroughly. Considering China’s actual situation and comparing the research results abroad, a comprehensive solution of Orphan works problem will be proposed in the paper on the basis of clarifying the connotation and the epitaxial of Orphan Work. The paper is divided into five chapters.The first chapter is an overview of Orphan Works problem. First of all, it clarifies the definition of orphan work and summarizes the features, then analyzes the causes deeply, revealing the multiple reasons why the orphan works problem broke out suddenly in the digital age. Lastly, it puts emphasis on the trouble of using the Orphan Works of which right status is full of uncertainty.The second chapter studies the rationality of exploiting the orphan works resource by the Law and Economics. The Orphan Works problem hinders further prosperity of the long-tail economy. What worse is it has brought the dead-weight losses. To make up the losses, we should improve the whole social welfare and balance the interests of every party through using orphan works beyond the traditional license mode,aiming at reallocating the copyright resources reasonably.The third chapter is about the legal problems related to Orphan Works. Firstly, it points out the substantive conditions and proceeds requirements of Orphan Works identification. Secondly, two different use-methods of the works are introduced: great-scale digitizing and derivative works. Last but not least, it focuses on the issue of unpublished Orphan Works, which involves the moral right of copyright owners.The forth chapter compares and evaluates different solutions to the Orphan Works problem. It demonstrates the proposals on Orphan Works both in USA and EU which have a huge difference, then analyzes the case of Google Library Project. As a solution based on the market operation, the settlement the parties arrived is flexible and adaptable.Finally, the paper gives recommendations to perfect the copyright system of Orphan Work in China. First, it discusses in detail of the problem in China, and points out the current law provision cannot be used to solve the problem. On this basis, the paper suggests utilizing a combination of different channels to form a blameless solution, which contains both legal ways and non-legal assistant methods.