Research On Orphan Works System

The core problem of orphan works is the problem of usage.On the one hand,the copyright law grants the right holder the exclusive right.Any use of the right holder’s work that is not fair and legally permitted must be authorized by the right holder.On the other hand,the essential feature of orphan works is that the copyright owner cannot be determined or contacted,and the traditional authorization-licensing mechanism does not work in the field of orphan works.As a result,users will either give up using orphan works and continue to shelve such cultural resources as orphan works,or continue to exploit the value of orphan works at the risk of copyright infringement.Regardless of the outcome,in fact,it is contrary to the legislative purposes of the copyright law.In order to solve the dilemma of the use of orphan works,countries have accelerated the legislative process of orphan works.At present,countries and regions such as the European Union and Japan have clearly adopted legislation to regulate the use of orphan works.The United States has also actively proposed a bill to try to establish an orphan works system.In China,Article 13 of the"Implementation Regulations of the Copyright Law",Article 19 of the "Copyright Law",Article 32 of the "Inheritance Law" and the fair use and legal licensing system are considered to be effective ways to solve the problem of orphan works,but in fact Some legal systems can play a very limited role in the field of orphan works.Therefore,it is still a worthy subject to discuss the authorization mechanism for orphan works and to construct the orphan works system.There are five parts in this article.Chapter one is introduction.It introduces the research background,reviews the research achievements of orphan works at home and abroad,and summarizes the innovation of this thesis.Chapter two,the concept and cause of orphan works,clarifies the concept of orphan works,analyzes the differences between orphan works and unowned works,out-of-print works,anonymous works,and discusses the causes of orphan works from the two levels of legal regulations and social development.Chapter three introduces the legitimacy and necessity of the construction of orphan works system.The legitimacy is reflected in the orphan work system,which is conducive to exploring the cultural value of orphan works,realizing the dual value pursuit of justice and efficiency of the copyright law,and exerting the social function of balancing the interests of the copyright law.The necessity is manifested in that the orphan works system can protect the interests of the relevant rights holders and resolve the conflict between the exclusive rights of the works and the right to use works.The most important is that there are a large number of orphan works in China,but the current copyright legal system cannot solve the problems of the use of orphan works.Chapter four introduces and analyzes the system of orphan works abroad.It analyzes the advantages and disadvantages of different orphan works from the perspective of comparative law,in order to provide some references for China.At the same time,through the analysis of the differences in the social background and the construction of specific rules for each orphan work system,it is found that what kind of orphan work plan a country adopts actually depends on the country’s legislative purpose and copyright value orientation.The fifth chapter is to build an orphan work system in China.First,unpublished works should not be included in the category of orphan works,and the "digital form"should not be the only way for users to use orphan works.Second,the mode of use should be taken as the basis for establishing the authorization mechanism of orphan works.For the deductive use of orphan works,compulsory licensing mode can be adopted,and extensive collective administration should be used for large-scale digitalization.Third,it clarifies the criteria for diligent search.The organization designated by the copyright administration department shall establish a guide for finding orphan works to determine different search scopes according to different types of works.Fourth,it establishes reasonable compensation rules.Under the compulsory licensing model,the user specifies the reference amount,calculation method and basis of calculation,then the agency designated by the copyright administration department determines the royalty amount through comprehensive evaluation.At the same time,drawing on Japan’s "Law for Compensation for Increases and Decreases in Compensation",a similar mechanism of increasing or decreasing royalties is established,allowing the copyright owner and the user to request an increase or decrease in the amount of royalties within the legal period.Fifthly,to improve other supporting copyright systems,we should establish an extensive collective administration to assist the implementation of the orphan works system.