Viewpoint | Legislative Research on Orphan Works in the Digital Age

Published:

2022-12-26

Abstract: With the advent of the era of digital rapid development, the number of orphan works in digital form has increased sharply. It is urgent to regulate the copyright protection and reasonable use of orphan works through legislation, so as to balance the relationship between the right holders, users and social public interests of orphan works. The legislative model of compulsory licensing proposed in the Copyright Law (Draft for Review) is not the best choice for China's national conditions, and a more flexible and efficient extended licensing system may become the legislative direction to solve the problem of orphan works. Keywords: orphan works digital extended collective licensing system legislation Overview of Orphan Works in the Digital Age of 1. The copyright protection of orphan works has always been a difficult problem in the field of copyright law in China, and it has attracted much attention all over the world. Especially in today's era of rapid digital development, with the widespread entry of digital platforms such as online search, digital libraries, and self-media creation apps into people's lives, the number of orphan works in digital form has increased sharply, becoming an urgent need to overcome. Key difficulties. Although there are preliminary attempts in the legislative practice of orphan works in our country, the provisions of orphan works have not been incorporated into the copyright law, and there is a lack of legal system to guide and regulate its protection and reasonable use. Orphan works are works whose authorship is unknown or whose authorship can be clearly identified but whose authorship cannot be found after diligent search. [1] The unknown identity of the author generally includes that the author has not signed or created anonymously, has not published the work publicly, or has published the work publicly, but due to the long time, the author's identity cannot be confirmed until now. Another example is that after the author dies, there is no heir to inherit his copyright, or after the dissolution of the legal person, there is no designated transferee of the rights of the work. [2] The situation where the author cannot be found after diligent search means that the author of the work can be determined, but the author cannot be determined where. According to the provisions of the Berne Convention, foreign authors enjoy copyright under the domestic law of their works in each member country [3], so it is often difficult for foreign authors to live in other countries. In either case, the user will not be able to obtain the authorization of the author when using the work, which runs counter to the protection principle of "authorization before use" in the copyright law. it has caused great obstacles to the protection of copyright and the promotion of cultural dissemination. At present, the volume of orphan works in the world is huge. The reason is that the copyright implements the principle of automatic protection, that is, the copyright is automatically enjoyed after the creation of the work without any formalities; the second is that the protection period of the copyright is constantly extended. The trend has led to a longer time for works to enter the public domain; the third is that with the advent of the digital age, all kinds of digital works are no longer restricted by time and space. More and more people participate in the creation, and more and more works are disseminated on the Internet. It is more difficult to determine the right holders of the works, while the public's demand for digital works continues to increase [4], which intensifies the contradiction between the copyright protection of orphan works and the cultural dissemination. 2. the legislative significance of orphan works in the process of digital construction in China Copyright entitles the owner of the work to exclusive absolute rights, without the consent of the copyright owner, others may not use the work. For the situation that it is difficult to obtain the consent of the right holder for orphan works, the absolute protection of rights undoubtedly brings great obstacles to the dissemination of knowledge and information and the innovation of cultural achievements. From the perspective of interest balance, the contradiction of orphan works mainly exists between the copyright owner, the user of the work and the public interest, and the contradiction of interest balance is particularly prominent in the era of digital works. On the one hand, the establishment of the right of information network dissemination and the legalization of technical protection measures have continuously strengthened the copyright protection in the digital environment. The World Intellectual Property Organization Copyright Treaty and the World Intellectual Property Organization Performances and Phonograms Treaty have greatly strengthened the protection of traditional copyrights and neighboring rights in the information network environment, expanded the scope of the object of copyright protection, and clearly established The information network dissemination rights of copyright owners and neighboring rights owners, that is, the dissemination of works through information networks must obtain the authorization of the copyright owner, and the interests of the copyright owner must not be harmed. [5] On the other hand, the digital information age makes the network dissemination of works more free and diverse in time, space and mode of dissemination, thus promoting the users of works to have greater opportunities to contact more network works at a lower cost. The over-protection of the copyright of orphan works increases the risk of infringement for the users of the works, and poses a certain threat to the users' right to reasonably obtain knowledge and information. At the same time, the excessive protection of copyright makes the public domain of orphan works more and more narrow, which has a negative impact on the dissemination of cultural knowledge and the promotion of digital construction. The National Fourteenth Five-Year Plan and Vision 2035 calls for "raising the level of public cultural services and comprehensively prospering the press and publishing, radio, film and television, literature and art, philosophy and social sciences. It also further calls for promoting the integrated construction of a public cultural service system in urban and rural areas, innovating and implementing cultural projects for the benefit of the people, extensively carrying out mass cultural activities, and promoting the digitalization of public culture." From the perspective of public policies to promote digital construction and promote cultural sharing and dissemination, it is necessary to regulate orphan works through systems, clarify the rights restrictions of copyright owners and users, and promote more excellent orphan works to be fair, friendly and legal on the network platform. Carry out dissemination and sharing, and promote the construction of digital platforms. [6] Therefore, appropriate restrictions on the protection of copyright through the design of the legal system can effectively maintain the balance between the private interest protection of the copyright of orphan works and the public interest of information dissemination and social science and cultural progress, so that the public can fully enjoy the right to contact works and obtain cultural dissemination, which is the most fundamental and optimal way to solve the problem of orphan works. Legislative Practice and Experience of Orphan Works in 3. Countries (I) Canada Section 77 of Canada's Copyright Act is a provision on orphan works. "When an applicant applies to the Commission to obtain (a) a published work; (B) a recording of a performer's performance;(c) a published sound recording;(d) a recording of a communication signal, if the Commission considers that the applicant has exercised reasonable diligence to find the copyright owner but cannot find the copyright owner, the Commission may issue a licence to the applicant for use." [7] The license is non-exclusive and indicates the duration and conditions of the work. At the same time, it is stipulated that the copyright owner may collect the royalties specified in the license no later than five years after the expiration of the license issued in respect of the copyright, or may bring an action to recover the royalties in a court of competent jurisdiction if the royalties are not paid. The biggest drawback of this compulsory licensing model in Canada is the need to establish a special copyright committee to review and manage the licensing of orphan works, which has high operating costs and low licensing efficiency, and has not been widely used in Canadian judicial practice. (II) United States In the United States, legislation on orphan works is embodied in the Orphan Works Act of 2006 [8] and the Orphan Works Act of 2008 [9]. The 2006 Act proposes a relief restriction system for orphan works. The act of using orphan works is defined as infringement. However, if the infringer has made a good faith, reasonable and diligent search and record before using the work, it will limit its liability for infringement. The 2008 Act further improves the measures and conditions for restricting relief, and further limits the monetary relief restrictions that exempt reasonable compensation to non-profit educational institutions, libraries, archives, public broadcasters, etc., and the infringer is required to be non-profit. Bear the burden of proof. [10] In 2015, the U.S. Copyright Office published a study, "Orphan Works and Mass Digitization," [11] examining subsequent developments in orphan works law, such as Google Books and the Hathitrust lawsuit, as well as the European Union's Memorandum of Understanding on Digitization, the Provision of Works for Non-Commercial Purposes, and proposing draft proposals for orphan works legislation in Appendix A. (III) England Article 57 of the 1988 Copyright, Design and Patents Act stipulates that the UK adopts a statutory licensing protection system for orphan works, and on this basis, the UK Copyright Act 2014 is formulated. Its statutory license protection system stipulates that if the user fails to find the right holder after reasonable and diligent search, it can be considered that the right holder has died or the copyright has expired, and the user's use of the work is no longer considered an infringement. [12] (IV) Germany German legislation on "orphan" and "out-of-print" works was adopted on 10 January 2013 and entered into force on 1 January 2014. The amendment to the Copyright Act provides for the digitization of orphan works and the provision of eligible orphan works from the collections of publicly accessible libraries, educational institutions, museums and archives to the public under certain conditions. [13] (V) Hungary The Hungarian Copyright Act (HCA) was amended in 2003 to add a free-to-use clause that allows libraries, archives and other educational institutions to provide limited on-site collections of works in their collections, including orphan works, and research through educational and academic terminals. The Copyright Act, as amended in 2009, has specific legislation for orphan works and provides for the issuance of licences for commercial and non-commercial use of orphan works by the Hungarian Intellectual Property Office (HIPO). The applicant must complete the relevant documents proving that he has conducted a diligent search and pay for their use. [14] (VI) Japan Article 67 [15] of Japan's "Copyright Law" stipulates that if the right holder cannot be determined or the right holder of the work cannot be determined after diligent search, a compulsory license may be granted upon the ruling of the Culture Committee established by the Department of Culture. The applicant must deposit a compensation fee corresponding to the normal royalty rate for the reappearing rights holder. Japanese legislation also provides for compulsory licensing of works by foreign writers, which can also be granted to works of foreign writers as long as the works are used in Japan, and the same provisions apply to diligent search for foreign works as to domestic works. (VII) South Korea According to Article 50 of the South Korea Copyright Act, users can apply to the Minister of Culture, Sports and Tourism for a compulsory license to allow the use of certain types of orphan works. Applicants must prove that they have made "considerable efforts" to determine the right holder or the right holder's place of residence, and must be paid at market rates determined by the South Korea Copyright Commission. [16] Suggestions on Legislation Design for 4. Orphan Works in China China's current "Copyright Law" does not provide for orphan works. Article 51 of the "Copyright Law (Draft for Review)" formed in the third revision of the Copyright Law stipulates, "For published works whose copyright protection period has not expired, the user tries his best to find the right holder but fails, and meets one of the following conditions, it can be used in digital form after applying to the agency designated by the copyright administration department of the State Council and depositing the royalties: (1) The identity of the copyright owner is unknown; the identity of the (II) copyright owner is determined but cannot be contacted." It can be seen that Article 51 of the draft for review draws on the compulsory licensing system of Canada, Japan, South Korea and other countries, and adopts a legislative model that combines diligent search, institutional approval, and deposit royalties. Although Article 51 was not included in the third amendment to the Copyright Law passed on November 11, 2020, this legislative exploration of the protection of orphan works is positive and beneficial, but its enforceability needs to be further improved. The compulsory licensing system gives full protection to the right holders of orphan works. However, due to the establishment of a special administrative agency to be responsible for the examination and management, the operation cost is high and the authorization efficiency is low, which is not conducive to the users to obtain the right to use orphan works as soon as possible. Objectively, it can not achieve the goal of promoting the dissemination of cultural knowledge and digital construction. Combined with China's national conditions, we can consider adopting an extended collective licensing system in the next legislative process of orphan works, and the copyright collective management organization will exercise the rights on behalf of the copyright owners of orphan works. An extended collective licensing system refers to an agreement between a collective management organization, as a representative of the relevant copyright owner in a particular field, and a user (such as a library) for the use of a work, whose binding power can be extended to non-member rights holders according to the law. [17] The extended collective licensing model is very suitable for collective copyright management for the reuse of digital works, greatly reducing the difficulty for users to find copyright owners, and benefiting more potential users, which is conducive to the large-scale use of orphan works. Under this solution, the copyright owner voluntarily registers his work with the collective management organization, and the collective management organization permits the user to use the work based on a predetermined fee. The user does not need to directly find the copyright owner and negotiate the license with the copyright owner. At the same time, the collective management organization has the right to license the use of non-member works that have not been registered with the organization. This model was created by the five Nordic countries and its success depends on the Nordic countries having a well-developed structure and culture for the activities of collective management organizations. In countries with underdeveloped collective management cultures and structures, extended collective licensing systems may need to be supplemented by further good governance rules. [18] The main advantage of this model is that bona fide potential users can benefit from clear legal avenues and prevent works from becoming orphaned and protect works of unknown author. [19] Under this system, users of works are not obliged to determine that a work is an orphan work by conducting a diligent search, but rather the collective management organization is obliged to conduct a diligent search to find and pay remuneration to all relevant copyright owners of works covered by the extended collective license agreement. At the same time, compared with administrative organs, copyright collective management organizations are closer to the copyright market and have a better understanding of the nature of market subjects' pursuit of interests, so compared with the copyright Bureau, copyright collective management organizations can more flexibly adjust the examination of orphan works to achieve the purpose of increasing efficiency. [20] In the digital age, the public's demand for free access to culture and knowledge is stronger than ever before, and the excessive protection of copyright law on the right holders of works is often not conducive to people's free enjoyment of culture and the rapid dissemination of information. On the road of copyright law legislation in the future, we should especially consider the balance of interests among the right holders, users and social public interests of the works, so as to make up for the legislative blank of orphan works in China's copyright law as soon as possible. Comments: [1] Lv Bingbin: "Restrictions on the Relief of Intellectual Property Rights to Stop Infringement under the Theory of Hijacking -- Taking" Orphan Works as an Example ", in" Journal of Shanxi Normal University (Social Science Edition) "March 2021, Volume 48, No.

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