Differentiation of institutions of public domain and orphan works in a cross-border copyright relations

Abstract

 Institutions of the public domain and orphan works in cross-border copyright relationships have drawn particular doctrinal attention because they are mechanisms capable of transcending territoriality. The article sets the task of distinguishing between the action of these institutions based on the study of the history of the issue, the content of sources, legal regulation regimes. Conclusions are made about the differences according to the following criteria:
1) recognition by the world community — the institution of the public domain is universal, while the institution of orphan works is enshrined at the national (regional) level only in a few states;
2) cases of transition of works under the influence of institutions — into the public domain — expiration of the term of protection, legislative prescriptions of a sanctioning nature, voluntary refusal of the authors from exclusive rights; institution of orphan works — the unwillingness of the author to exercise  control or loss of information about the author;
3) on the basis of the definitions of the subjects of regulation: public domain —  works that are not protected by copyright; orphan works, by contrast, are believed to be protected by copyright;
4) connection with the harmonization process — the institution of the public domain is enshrined in the law of all states of the world participating in the system of international copyright protection, and its action can be considered  the result of harmonization, including the choice of lex loci protectionis to resolve cross-border disputes; there is no uniformity in the mechanism for accessing orphan works. At the same time, at the transboundary level, both institutions are united by the problem of the absence of legal regulation for the situation of returning a work under full copyright protection.