Regulation of Cross-Border Copyright Relations related to Works with an Unknown Copyright Holder (Orphan Works)

Abstract

The existing options for regulating the admission of third parties to the use of orphan works are not unified and tend to the legal presumptions opt-in (the copyright holder disagrees by default) or opt-out (the copyright holder agrees by default). There are certain common directions of the development of regulation concerning such issues as key understanding of an orphan works, preliminary search for a copyright holder, providing the copyright holder with the opportunity within a certain period to restore his rights and receive compensation for the use of a work, limitation of compensation for the use of an orphan works. Some states also show a tendency to the development of regulation of access to orphaned works specifically for cross-border relations: the creation of joint storage banks and cooperation of such banks (EU); recognition of the status of an orphan work established in one state by other (contracting) states (EU); the perception (In the established case) by national courts of supporting documents issued in a foreign jurisdiction on the search for the copyright holder as evidence of the orphanhood of the work (USA); establishment of conflict of laws regulation for finding the law applicable to relations with works restored under copyright protection (USA). Due to the fact that the activities of states to regulate access to works with an unknown rightholder contradicts the concept of the exclusivity of copyright and the imperativeness of their validity, the creation of a legal regime for the protection of orphan works should be initiated at the conventional (unifying) level.