Accessibility of Rights on Orphan Works

Abstract

This study aimed : 1) to study concepts, theories, and background of copyright as well as the principles of copyright and orphan work; 2) to study the legal measures on the accessibility of rights on orphan works under the International Agreement, the United Kingdom Law, and the Thai Law; 3) to analyze and compare the legal measures on orphan works to eradicate obstacles of accessibility of rights on orphan works in the context of the International Agreement, the United Kingdom Law, and the Thai Law; and 4) to synthesize the analysis results to issue the guideline to rectify and revise the copyright law related to orphan works. This study was a qualitative research. An orphan work is a copyrighted work whose owner is unidentify or unlocated. The result revealed that only the Berne convention and the Directive 2012/28/EU set out rules to support the rights of the orphan work right holder. In addition, the Berne Convention determined that the state agency was presumed to be agent of the orphan work’s author. However, the convention set no rule about the accessibility of rights on orphan work while the Directive 2012/28/EU explicitly set out the common rules related to the accessibility of rights on orphan work exclusively amongst the member states. The United Kingdom, subsequently, had implemented the directive and enacted the law governing an orphan work diligent search, to which the authorising body was subject. The authorising body had a responsibility to satisfy itself as to the quality of the diligent search carried out before a license could be issued, and determined a fair rate of the royalty. In case which the right holder was identified and located, the orphan work status would be put to an end, and the right holder had the rights to obtain the royalty payment. If the amount of royalty could not be agreed, it might have been settled by the Copyright Tribunal. The Copyright Act B.E. 2537 (1994) currently had no enforceable effect on the orphan work, nevertheless. The researcher, therefore, suggested to determine a search measure, and the department of intellectual property was subject to discover the author of any work as to use them to create the database. If the author of any work was not identified and located, it was considered as the orphan work. In term of the royalty, an orphan work user was restricted to leave a fair rate of deposit at the deposit office prior to the use of an orphan work, which would not deprive the orphan work’s author of the rights to negotiate the royalty payment and condition on the use of the work as well as refer the dispute to the court proceedings related to the condition, the use of work, and the amount of royalty proceeded.