Research On The Copyright Protection Of Orphan Works In China

"Orphan works" are works that are still under copyright protection but the identity of the copyright owner is unknown or cannot be contacted although the identity of the copyright owner is clear.Although the problem of orphan works has existed for a long time,the impact of new systems and technologies has directly caused a change in the behavior and mentality of rights holders,who is very passive in marking and managing rights information,thus leading to the emergence of orphan works.Copyright owners use the defects of the orphan works system to blackmail users,who gives up the use of orphan works out of the mentality of avoiding infringement,and in practice,even if a small number of users make use of orphan works,they will be recognized as infringement by the court,but the scale of orphan works is huge,and they are an indispensable part of the digitalization process.However,orphan works are huge in scale and are an integral part of the digitalization process.The protection system for orphan works has been established in foreign countries,and these models have their own advantages and disadvantages,but if they are blindly transplanted to our jurisdiction,there may be a rejection reaction.Similar provisions on orphan works in our existing legislation have many shortcomings and cannot solve the current orphan works problem in China.The third revised draft of the Copyright Law proposed a compulsory licensing model for the exploitation of orphan works,but the provision was eventually "aborted" due to the shortcomings of the compulsory licensing model itself and the weakness of the supporting system.The legislative gap of orphan works has led to the inability to follow in practice,so it is urgent to build a suitable protection system for orphan works in China.In constructing our model,we should take into account the cost of operating the system to ensure that users can use orphan works at low cost and high efficiency,while preventing opportunistic behavior of copyright owners and eliminating incentives to act.Specifically,we should build a differentiated model for the protection of orphan works,adopt a compulsory license model for profit-making use and deposit royalties beforehand,so that a small amount of orphan works can be commercially used without incurring large costs;adopt a "statutory license + copyright owner’s reversion for nonprofit use,we adopt the "legal license + copyright owner’s reimbursement" method to minimize the burden of users,especially public cultural institutions,and realize the large-scale use of orphan works.We will improve the criteria for "reasonable efforts to locate",refine the criteria,steps and principles for locating orphan works,and design a supplementary system for orphan works through cutting-edge technology to flexibly solve the problems of orphan works and promote the dissemination and development of culture.