The Issue of Using Certain Copyrighted Iems Whose Right Holders are Unknown: Foreign Experience and Solutions

Abstract

Introduction. The relevance of this work is due to a significant number of works whose author or right holder is unknown, the impossibility of legally using such works in civil circulation, the urgent need for normative fixation of the status of a work whose author or right holder is unknown, and establishing opportunities for legal use of such works, taking into account the analysis of foreign practice in regulating this issue. The aim of the study is to analyse foreign practice in regulating the use of works whose author or right holder is unknown, to identify the key features of this legal institution, and to evaluate its proposed incorporation into the Russian laws. The task of the study is to analyse the legal institution of using a work whose author or right holder is unknown, and to identify common features of this legal institution in different countries. The scientific problem that the research aims to solve is to establish legal regulation for the use of works whose author or right holder is unknown, taking into account the peculiarities of the Russian laws. Methods. The work used methods of analysis such as general scientific, formal and legal, comparative and legal and system and structural. Results and Discussion. The number of works whose author or copyright holder is unknown in the largest European libraries is estimated at 20—30 %, and some estimates suggest that the proportion of such works in Russia is even higher. The works whose author or right holder is unknown are not given in international treaties of a universal character, but is reflected in some regional (Directive 2012/28/EC of the European Parliament and Council of the European Union) and national regulations of about 30 countries. The legislation of each of the countries reviewed (France, Germany, Norway, Hungary, UK, US, Canada, India, Japan, Korea) has its own peculiarities. Draft Federal Law No. 411043-8 "On Amending Part Four of the Civil Code of the Russian Federation (in terms of establishing a procedure for the use of certain objects of copyright and related rights whose right holders are unknown)" establishes the concept of an object of an unknown author (right holder), and sets up a mechanism for the use of these objects, the authors (right holders) of which, if identified, will be able to receive remuneration for such use. The proposed mechanism fits seamlessly into the existing system of collective rights management, contains provisions aimed at developing this system (the possibility of using a nominal account to collect and store funds owed to other right holders) and ensuring the interests of authors (right holders) of orphan works. Conclusion. There are no unified approaches in different national legal systems with regard to almost all elements of the works whose author or right holder is unknown, at the same time, the content of applicable laws reveals common ways in the development of regulation. In the absence of a universal international regulation of this issue, each country establishes its own mechanisms to provide the possibility of using orphan works, to return such works to the cultural, scientific and educational environment, to prevent their oblivion and loss, which from time to time make it possible to re-establish contact with their creators, authors or right holders.