An Study of Legal Problem and Solution of Orphan Works
Date Issued
2008
Date
2008
Author(s)
Lai, Yun-Yu
Abstract
The works whose copyright cannot be authorized to others due to the fact that the owners of the works cannot be identified or located are termed “orphan works” in the U.S. Whether it is necessary to enact laws to deal with “orphan works” is not only paid attention to in the U.S. but also widely discussed in the European Union. Canada and Japan have pioneered in legislating laws for orphan works. To solve the problem surrounding copyrighted works with unidentifiable owners, the bill concerning the act for the development of digital content industry has been drafted in our nation. Motivated by this background, this study aimed to explore the orphan works issue and discoursed how the current Copyright Act applies to such issue. Through law comparison, this study also probed into how the law should be enacted in our nation. This paper comprised six chapters. The first chapter was an introduction of this research. The second chapter clarified the origin of the orphan works issue and explained why the issue was mainly stemmed from the advancement of digital technology. By analyzing the evolution of the U.S. Copyright Law and practical cases involving orphan works, this study argued that extension of copyright terms and reform of copyright registration are also factors causing orphan works. In a further comparison, similarities could be found between the U.S. and our nation in the factual and legal aspects. Therefore, the orphan works issue cannot be overlooked. The third chapter introduced the domestic disputes over orphan works and provided practical perspectives to explain that, due to the limitations on copyrights in Copyright Act or lack of intent or negligence, users of orphan works are either exempted from copyright infringement liability or, if not fully exempted, may be judged by the court to pay a reduced compensation. In the aspect of criminal liability, in a copyright infringement case that is not a crime indictable only upon complaint, if the prosecutor fails to provide evidence for the validity of the copyright of the orphan work, in pursuant to “in dubio pro reo”, the user may be deemed free from any criminal liability. The fourth chapter analyzed the U.S. Orphan Works Act of 2006 and precedents in Japan and Canada to compare the difference in legislation. For instance, the U.S. regulations set limitations on remedies in cases involving orphan works. Users of orphan works are required to resolve the dispute in court only when the copyright owner declares his right and are subject to pay a reasonable compensation, which is generally equivalent to the reasonable royalty. Regulations in Japan and Canada are based on the compulsory license model, requiring the competent authority to approve the compulsory license and users of orphan works to deposit compensation. All these precedents can serve as a reference for a domestic act. The fifth chapter focused on the legislation of the act. First of all, this study explained that the current licensing mechanism for use of copyrighted work is not applicable to the orphan works issue, and enacting a new act is imperative. The bill concerning the act for the development of digital content industry is based on the compulsory license model and should be supported. The legal instances, applicability of the bill, user’s search obligation, calculation and deposit of compensation, and remedy procedures for compulsory license were compared with precedents to further point out that regulations governing orphan works should be included in the Copyright Act. The limited applicability of the current bill to only the “production of digital content” should be revised, and unpublished works should also apply to the compulsory license regulations for orphan works. In addition, compensation for use of orphan works should also be clearly regulated for the authority concerned to determine proper compensations case by case, so that a uniform calculation method may not be necessary. The final chapter concluded the above chapters and proposed substantive suggestions to hopefully help resolve the orphan works issue.
Subjects
digital content
orphan works
compulsory license
statutory license
fair use
SDGs
Type
thesis
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