「孤兒著作」，在我國又稱為著作財產權人不明著作，係指著作權保護期間尚未屆滿，而著作權利人身分不明或所在不明之著作。隨著網路環境發展導致資訊爆炸，加上著作權保護期間延長與註冊保護主義式微之現象，造成孤兒著作數量暴增。欲利用孤兒著作之人雖盡一切努力，常遍尋不著著作權利人，惟若未取得權利人之授權，利用人可能為了避免成為侵權訴訟之潛在被告，而放棄孤兒著作之使用，如此窘況，恐怕造成孤兒著作難以為社會充分且妥善地利用。為了解決此一問題，世界各國紛紛進行孤兒著作利用之立法，其中，美國於2006至2008年間三度提出孤兒著作法案，我國亦於2010年制定之文化創意產業發展法第24條規定孤兒著作利用之準則，確立我國對於孤兒著作之申請許可制度。然而，憑藉歷年相關文獻對於孤兒著作之討論，可以發現我國文創法關於孤兒著作之規定當中潛藏許多法理與執行上之盲點。本文試圖由孤兒著作法制之沿革出發，接續我國孤兒著作相關立法之介紹，經由比較法方式引進並研析美國最新立法趨勢，期以不同之觀察視角為我國孤兒著作制度相關研究以及立法提供參考。
Orphan work, according to the definition of the U.S. Copyright Office, means someone who wishes to make use of the work has made a reasonably diligent effort to find the copyright owner of the work in order to have the permission to use the work, yet the owner of a copyrighted work cannot be identified and located. In recent years, the amount of orphan works have tremendously increased due to the thriving of the Internet which has caused the information explosion, and the expansion of the copyright terms which makes people hard to track the identity and the location of copyright owners of copyrighted works. When a copyright user uses its best effort but fails to obtain a valid authorization from the copyright owner, they may give up using the work at issue so that they may avoid potential lawsuits of copyright infringement. The work, however, will not be effectively and fully used by the society under this predicament, and hence hinder the progress of the culture creativity. In order to settle the problem, countries around the world have been proceeding their own legislation on the issue of orphan works. In the U.S., New Orphan Work Acts had been introduced thrice by some Congressman during 2006 and 2008 even though the Acts were not accepted and enacted by the Congress in the very end. Taiwan has also followed the international trend and enacted the Article 24 of the Law for the Development of the Cultural and Creative Industries (Culture and Creative Law), which provides the clear standards and the licensing system for the use of orphan works. According to the research and studies on orphan works over the years, we may still find flaws of the orphan works provisions in the Taiwanese Culture and Creative Law. The article will try to make a comparative study of Taiwanese and the U.S. orphan works legislation in order to explore the problems and identify possible solutions.
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