DOI：10.19685/j.cnki.cn11-2922/n.2023.02.014



Abstracts：Anonymous works and orphan works differed significantly online，and the normative rules for orphan works cannot be naturally compatible.In the context of the Internet，anonymous works have the strong characteristic of moral rights in the legal subject，creative behavior，and the dissemination of works.Meanwhile，bring about difficulties in au-thorizing works and generalization of infringement.Based on the balance of interests theory，a conflict of interest occurs between the private interests，consisting of the authors'privacy and the need of copyright protection，and the general public interest in the dissemination and utilization of works.On the premise of reasonably defining the boundaries of the author's privacy，the aforementioned conflicting interests shall be balanced.On the implementation path，the eauthorization efficiency of anonymous works online shall be improved to link the anonymous works system to the or-phan works system at the same time.
Key Words：anonymous works；orphan works；copyright；privacy rights；the balance of interests theory
CLC：D923　　DC：A　　Article：2096-9783（2023）02-0128-10
　　The origin of the copyright system is closely related to publishing，and the development of reproduction and com-munication technology has been continuously promoting the innovation of Copyright Law［1］.After the printing and pa-permaking techniques were introduced to Europe，the publishing industry prospered due to the reduction in the cost of book printing.In order to protect their own interests，dominant publishers cooperated with rulers to obtain franchised monopoly rights at the expense of the freedom of speech.From the exclusive print publishing of the Popes and Kings of France in the 15th century to the printing guilds established by British publishers in the 16th century，these were all kinds of the franchised business.In 1709，the Statute of Anne was approved by the Parliament of Great Britain，estab-lishing an institutional system centering the author as the subject of rights as well as the focus of the legal protection，rather than the publisher，which has been considered to be the starting point of the modern copyright system［2］.
　　Although the copyright concession has been replaced by the modern copyright system due to the gradual develop-ment of printing and dissemination techniques in the long historical process，publishing with professional publishers has been the major way to disseminate works ever since.The publisher，as the link between the authors and the audi-ences，has become a significant medium for dissemination.Publishers consider market factors to screen off and edit works which greatly affects the exercise of the right to publish.Therefore，the threshold for publication has been raised while the quality of published works has been endorsed.Within such a publishing process，the author was only neces-sary to communicate with the publishing agency，finishing the modification，publication，fund settlement，etc.，with no need to contact the general public.An authorization quotation to utilize the work and some other requests can also be conveyed to the author through the publishing agency.Even if the infringement occurred，the author might authorize the publishing agency to carry out rights in protection litigation.Clearly，the anonymous work has its own existence space：the author can publish the work by signing the pen name（pseudonym）or unsigned according to his own pur-pose，and at the same time require the publishing agency to fully keep the secret of the personal information of the au-thor.That is，there has been no conflict between preserving privacy and encouraging the dissemination of works.
　　However，with the leap of information technology in recent decades，the Internet has become a major channel for the publication and dissemination of works and has so far significantly challenged the inertia of the model dominated by traditional publishers.One of the characteristics of the virtualized Internet environment is that it is highly consistent with the user's privacy protection intention，and a large number of users actively choose to engage in anonymous Inter-net activities，including the publication of anonymous works.That is，anonymous works have changed from the original-ly marginalized phenomena to a class of norms in current publishing and dissemination channels.There are many dif-ferences between anonymously published works on the network and anonymously published works under the traditional publishing mode，while the Internet Service Providers（ISPs）serve diversely in various types of network platforms etc.The positioning and functions of traditional publishers are challenged，and it is now particularly important to explore the new situation of copyright protection of anonymously published works online and to examine the boundaries divid-ing the privacy rights of the anonymous authors and the copyright interests of the authors and the public.
1 The Connotation of Anonymous Works Online
1.1 System Comparison of the Anonymous Works and the Works of Unidentified Authors
　　Anonymous works traditionally refer to works in which the author does not sign or identify himself or in person［3］.China's Copyright Law does not adopt the terminology.Article 13 of the Regulations for the Implementation of the Copyright Law uses a similar term the work of an unidentified author，the definition of which is similar to the scholastic term orphan work，which is also translated into Chinese literally as"unowned works".The above-mentioned terms and related rules have been made all with the intention of promoting the utilization of works，but distinct in the specific path selection in practice.
　　The author's right of attribution means that the author can sign or not sign the work.The only requirement for an anonymous work is that the author does not indicate his civil identity on the work.It is not a question of whether the owner of the copyright is clear，whether the identity of the copyright owner can be known to the public，or whether the utilization of the work requires the obligation to search diligently.The copyright ownership of an anonymous work may or may not be clear in contrast to a work of an unidentified author whose authorship is unclear.
　　The term orphan works are derived from the U.S.Copyright Office Report on Orphan Works（2006）and refer to works for which the copyright owners are unidentified or identified but cannot be contacted［4］.Under the prior authoriza-tion request by the Copyright Law，the use of this type of work is susceptible to infringement resulting in a large scale of sleeping copyright，which is contrary to the legislative purpose of the Copyright Law.In order to address the issue of authorized use and effective dissemination without excessively harming the interests of copyright holders，different countries have adopted different legislative models around the user's duty to search diligently.
　　Some scholars believe that orphan works shall be introduced into China as unowned works because the latter can be applied in concert with the unowned property rules in China's civil legal system，avoiding conceptual burden and confusion［5］.The reason is that China's current legislation treats the work of the unidentified author as a type of un-owned property，which is not the same as the specific path selection of foreign orphan works system in revitalizing copy-right resources，but focusing on determining the right holder of the work.That is why Article 13 of the Regulations for the Implementation of the Copyright Law says，"in the case of a work of an unidentified author，the copyright，except the right of authorship，shall be exercised by the owner of the original copy of the work.Where the author is identified，the copyright shall be exercised by the author or his successor"［6］.In terms of the transfer of specific rights，it is also subject to the provisions of Article 19 of the Copyright Law and Article 1160 of the Civil Code.The public's inability to know the identity of the author is only the appearance of a work of an unidentified author，behind which the copyright holder is unknown and rights are in an unstable state.Therefore，although Article 13 of the Regulations for the Imple-mentation of the Copyright Law is roughly equivalent to orphan works in terms of definition，the former is to promote the use of works by specifying the right holder and the latter is to promote the use of works by regulating the user.So in this sense，it seems that the unowned work should not be defined as a conceptual equivalent of the orphan work but can be used to refer to the work of an unidentified author in China.
1.2 The Relationship between the System of Anonymous Works and the System of Works of Unidentified Authors Online
　　The criterion for an anonymous work is whether the civil identity of the author is clear.Anonymity means hiding his identity by concealing his name without signing.Before the advent of the Internet，the use of pseudonyms could achieve the effect of hiding one's civil identity.Unless the author took the initiative to claim the identity，it was diffi-cult for the public to establish an identity between the pseudonym and the identity of the author.However，in the Inter-net environment，the use of screen names is a common phenomenon under the authentication provisions of "Back-ground legal name，foreground free will"in rules China.Even ISPs hold the user's real-name information，they usually do not have the function or willingness to operate copyright.The practice of identifying pseudonyms as anonymous can no longer adapt to the reality of current developments but should comprehensively consider the degree of connection between pseudonyms and authors，that is，whether they have the identity of directly pointing to the author and whether they can make the public be able to know the civil identity of the author.
　　Anonymous works in the online environment are divided into broad and narrow senses.Anonymous works in the narrow sense of the online environment only refer to works published through the Internet in anonymous form for the first time，and anonymous works in a broad also include the upload of published works to the network more than being initially published online.Before the work is uploaded，it may be published anonymously or not.Still，after being up-loaded，the author's information turns unknown due to anonymous upload or reproduction，or usage without indicating the source.Unauthorized uploading，reprinting，and usage is regulated by laws such as the Copyright Law，the Regula-tion on the Protection of the Right of Communication to the Public on Information Networks，and so on.In this study，anonymous works in the narrow sense have been mainly explored based on the Internet environment，i.e.，the work pub-lished by the author himself in an anonymous form via the Internet has been discussed.
　　If the statute makes an institutional distinction between anonymous works and works of unidentified authors，it is not difficult to find that although the definition of these works all related to unidentified authorship，the identity of the author is only the appearance of the system，in fact，it is the inability to contact that leads to the lack of authorized channels for the utilization of works：in the Internet environment，this can be better understood that people anonymous-ly published an article written by himself on an ISP platform，his civil identity on the public side of the online platform remains unknown，and there is no doubt that the work is anonymous to the public，but whether it is a work of unidenti-fied an author is uncertain.If the platform ISP provides communication functions such as comments or private messag-es，or even the ISP provides copyright agency services for the author，the potential users of the work are able to directly or indirectly establish contact with the author.The work is the work of identifying an author.
　　However，when the online platform on which the author publishes anonymously and ISP does not provide any com-munication function，or the author has closed the communication pathway，due to the ISP is not allowed to disclose the user's personal information from the background side to the public according to relevant service contracts as well as the legal regulations on the protection of personal information.The anonymous work is also the work of an unidentified author.Therefore，in the Internet environment，whether the author's civil identity is known to the public is not the crite-rion to judge whether works are of identified authors or not.，but whether there exists an author's authorization channel becomes the criterion，thus returning to the purpose of the current law：to solve the problem of promoting the use of copyright resources when not being able to contact the author to obtain authorization.
2 The Characteristics and Dilemmas of Anonymous Works in the Internet En-vironment
2.1 Non-Specialization of the Creative Subjects
　　Cultural rights and freedom of expression have long been concepts of the same category［7］.In international human rights conventions，the freedom of cultural creation，such as freedom of expression，is also incorporated into cultural rights[1].Article 47 of the Constitution of P.R.China stipulates that those citizens of P.R.China have the freedom to engage in scientific research，literary and artistic creation，and other cultural pursuits，showing that there is a conceptu-al coupling between cultural rights and freedom of expression.So literary and artistic creation is a basic right of citi-zens，a fundamental need for self-expression，and an important kind of social activity.In order to expand the scope of dissemination of works，authors need to publish works on some media with strong communication ability so that the publication and the distribution behaviors are closely combined to present the work to the public.In the traditional publishing model，influential communication media have developed into highly specialized industries；in order to en-sure their own professionalism and audience stickiness，these media need to screen off and edit the works obtained，and the author's creative level and the quality of the works determine whether the works can eventually be accepted for publication and distribution.