Jan 2, 2009

Orphan Works in the Context of Chinese Copyright Law

Orphan Works in the Context of Chinese Copyright Law: A Comparative Research

DONG Hao

Abstract: "Orphan Works" means works whose copyright (if not expired) owners can hardly be located, hence the users may not exploit the works lawfully with the licenses issued by right owners. Discussions to this topic in the U.S. and Britain have been raised for years, and the Bills for orphan Works have been introduced to the U.S. congress several times. The dilemma of orphan works and abandon softwares also exists in the context of Chinese copyright system, and this phenomena may be more widespread because the history of Chinese copyright law in the recent 100 years are inconsistent, unsteady and intermittent. Furthermore, the current Chinese copyright system is of not mature enough. It not merely lacks solutions for the orphan work problem, but also exists unreasonable provisions that may worsen it. Four factor should be considered when one is about to solve the problem: (1) comply with the three-step test; (2) based on existing legal system of the country; (3) minimize the cost of both right owners and users; (4) guarantee the predictability of the benifits and the obligations. Based on these four premises, this article critically reviewed the solutions in the U.S., Canada and Japan, and then proposed a set of multi-method and integrated suggestion that suit to the features of Chinese copyright regime.

Keywords: orphan Work, statutory licence, compulsory licence, authorship, public domain

The first draft of this paper (in Chinese, 21,000 words) has been accomplished in Nov. 2006, and it is continuously updating before the formal publication. It is one of, if not absolutely the one, the earliest paper in Chinese discussing the Orphan Works, especially based on the Chinese Copyright Law. If you need it, please conatct me at donnie[at]BLawgDog.com.

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