Elgar Intellectual Property and Global Development series
Edited by Nari Lee, Niklas Bruun and Mingde Li
Chapter 6: Orphan works in China and Europe
During the ongoing third amendment of Chinese Copyright Law, a new provision for the use of orphan works was included in the draft proposed by the National Copyright Administration (NCAC). The orphan work issue was discussed in both the US and EU from 2006. The US Orphan Works Act 2008 failed to pass and was shelved till now. In contrast, the EU Orphan Works Directive was approved by the EU Parliament and Council of Ministers in late 2012 and the Member States successfully brought the Directive into force as domestic law by 29 October 2014. The Draft Amendment of the Chinese Copyright Law follows a similar core conceptual solution as the EU Orphan Works Directive. This solution provides that if the user has performed a “reasonably diligent search” for the copyright owner, but is unable to locate that owner, then that user enjoys an exemption from copyright infringement if, subsequently, the copyright owner establishes ownership and attempts to sue for copyright infringement. However, the background and the details are different for the EU and the Chinese orphan works proposals. The EU Directive covers the digitization and dissemination of orphan works but only for use in the public interest and by organizations acting in the public interest. The Chinese orphan works proposal, however, seeks to establish a lodge system, where any user can apply and deposit a fee for using orphan works. In this regard the Chinese approach is similar to the US proposal because there is no prohibition on commercial use and the substance of such a system is to create a non-exclusive statutory orphan works license for any user. This license, however, places limits on the right of reproduction and public transmission in the digital environment. China is adopting an innovation-driven policy, yet copyright protection is comparatively weaker than the western countries and to impose any new restriction on copyright holders now, such as granting a statutory license for orphan works on all users might discourage the creation of original works in the long run. There is a fair use exception under the present Chinese copyright regime for publicly accessible libraries to digitize their holdings for preservation purposes and to display their service objects within their premises. Therefore, China only needs to add an orphan works proposal establishing a statutory license for non-commercial users, such as public libraries, to transmit their orphan works to registered clients via the Internet. The specific implementation measures, such as the definition and scope of orphan works, the criteria defining a diligent search, the license application, the deposit fee, and the payment of remuneration once the right holder is identified or located, etc. should be stipulated in a regulation formulated by the administrative department of copyright under the State Council separately. Other related mechanisms such as a statutory levy and extended collective management also need more consideration and research.
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