Correlation of terms «orphan work» and «public domain work» in the modern copyright law

Abstract

Keywords: orphan work, copyright, work digitization, public domain, propertyrights of the author, term of copyright The authors insist on the need todifferentiate the terms «orphan work» and «public domain work». It is connected withthe necessity to follow reasonable balance between the property interest of the authoror his successors and the public interest in reasonable use of the work in order to improvethe current legal field.It is substantiated that the existing copyright system, which provides to pay royaltyfor every use of the work for its author for 70 years or more, conflicts with theneeds of society in modern digital age. It is necessary to get permission from the copyrightholder to digitize a work to make it available. For orphan works it is difficult.The traditional copyright system should provide an exception for orphan works. It isformulated that permission to use such works must be granted by a specially authorizedstate body if there is any evidence that the user has taken all possible measuresto find the copyright holder, but has not been successful.Analysis of the content of theoretical and legal definitions of the terms «orphanwork» and «public domain work» shows that the presence or absence of ongoing protectionof property rights of the author is a key factor in the difference. Such rightsare still valid for orphan works, and therefore the permission of the right holder touse such a work is required. Meanwhile, the «public domain work» includes workswhich the term of copyright has expired. Therefore, the work can be used without permission.So, the approach that an orphan work becomes public domain is incorrect.On a basis of analysis of legislation conclusions is drawn that it is inexpedient touse too voluminous definition of the term «orphan work». It is argued that the systemof issuing permits for use of orphan works by the state bodies at request of a potentialuser must be defined in legislation.