Japanese copyright law
|
|
In Japan, the copyright is divided into two: Author's Rights and Neighboring Rights. Notice there is no single concept of copyright in Japan. In other words, the copyright is a collective term.
While mostly the copyright law is similar to ones in the other countries, there are some subtle differences. The concept of public domain in Japan is controversial.
Because there is no concept of public domain in Japan's copyright law, even though the materials are claimed public domain, there can be some restrictions.
| Contents |
Author's rights
Applicability of author's rights
Japanese copyright law protects all works "in which thoughts or sentiments are expressed in a creative way and which falls within the literary, scientific, artistic or musical domain".
The law automatically provides the following rights without need for formal declaration or registration.
Moral rights
- Divulgence: The author can choose when and how a work will be made available to the public.
- Authorship: The author can choose how his authorship is represented in the work (e.g. pseudonym or anonymity).
- Integrity: The author can control the modification of the work.
Moral rights are non-transferable. They remain with the author until they expire (see below).
Economic rights
- Reproduction: The author can control reproduction of the work, including photography, recording, downloading, and the like.
- Communication: The author can control how a work is transmitted, communicated, broadcast, performed, exhibited, etc. The author can also control how copies of a work are distributed.
- Adaptation: The author can control the adaptation of a work through translation, dramatization, cinematization, and the creation of derivative works in general.
Unlike moral rights, economic rights can be freely transferred or relinquished. If the author transfers his economic rights to another, the holder of the economic rights becomes the "copyright holder," but the author retains authorship.
Neighboring rights
"Neighboring rights" refer to the rights of performers, broadcasters, and other individuals who do not author works but play an important role in communicating them to the public.
Performers' rights
Performers generally have two non-transferable moral rights: authorship, or control over how they are named in connection with the work, and integrity, or control over the alteration of a performance in a manner that would prejudice the performer's reputation.
Live performers have the transferable economic rights of fixation (control over recording), making available (control over publication in interactive media such as the internet), and diffusion (control over diffusion by wire or broadcast).
Fixed aural performers have the transferable economic rights of fixation and making available, as well as transfer of ownership and rental. They can also demand remuneration if their work is broadcast or diffused by wire.
Phonogram producers' rights
Phonogram producers have the same economic rights as fixed aural performers, but do not have any moral rights.
Broadcasters' and wire diffusers' rights
Broadcasters and wire diffusers have the transferable economic rights of fixation, reproduction, making available, and retransmission. Television broadcasters also have a right to control photography of their broadcasts.
Exceptions
- Artistic works. Artistic works located in public places can be reproduced freely by photograph, film, etc. However, the author's permission must be obtained before publicly exhibiting their work, and commercial reproductions of artistic works are not permitted without the author's permission.
- Educational use. Teachers at non-profit educational institutions are permitted to reproduce copyrighted works for the purpose of teaching, as long as such reproduction does not infringe on the interests of the author. For example, a teacher may duplicate a television program or audio recording, but may not distribute copies of educational software without express permission. Works can also be reproduced in examinations at educational institutions, but the author must be renumerated if the exam is performed for-profit.
- News. Unless a newspaper or wire service article specifically states that it cannot be reproduced, free reproduction is permitted. Normally copyrighted materials can also be reproduced to the extent necessary for reporting of current events (this extends to printed matter, film, and photographs).
- Non-profit performance. Works can be performed or exhibited freely if the performer is not renumerated and the audience is not charged an admission fee.
- Political speeches. Political speeches and government proceedings can be freely reproduced except when the intent of the reproduction is to create an anthology of the author's works.
- Publication for the blind. Braille and audio versions of printed materials may be reproduced freely for the purpose of lending, but not for commercial use.
- Quotation. Works may be quoted freely, as long as the quotation does not exceed what is justified for its purpose.
- Software. Software can be reproduced for personal use.
If using one of the above exceptions to reproduce a work publicly, the person reproducing the work must cite its source.
Length of protection
Works authored by an individual, under his own name or a known pseudonym, are protected for fifty years following the individual's death. Works authored anonymously or under an unknown pseudonym are protected for fifty years following publication.
Cinematographic works, as well as works authored by corporations where the individual author or authors are unknown, are protected for seventy years following publication (or seventy years following creation if the work is not published).
Neighboring rights apply for fifty years after the work is performed, transmitted, or put on sale.
Works authored by or transferred to residents of Allies before the effectuation of San Francisco Peace Treaty have given some prolonged protection by an exemption law. This extension compensates the unprotected period in World War II and varies by the country of the author or copyright holder in the wartime. The prolongation is normally by 3,794 days (including Australia, Canada, France, United Kingdom and United States), but some countries ratified later and have longer wartime (the longest is 4,413 days for Lebanon).
Recent movement
The Compensation System for Digital Private Recording
In 1992, the Compensation System for Digital Private Recording was introduced. According to this system, those who make digital sound or visual recordings for personal use should pay compensation to the copyright owners. This compensation is in advance added to the prices of specified digital recording equipment (DAT, DCC, MD, CD-R, CD-RW) and specified recording media (DVCR, D-VHS, MVDISC, DVD-RW, DVD-RAM) (Japan Copyright Office 2001, 17; ibid. 24). This compensation is collected and distributed by SARAH (Society for the Administration of Remuneration for Audio Home Recording) and SARVH (Society for the Administration of Remuneration for Video Home Recording). In fact, the user of this equipment and media has to pay a sort of fee or so called "compensation" for the fact that they can use the described materials for copying of copyright protected works. The public domain is not directly threatened, but in an indirect way, it becomes more difficult (expensive) to reproduce works for personal use.
The right of communication to the public (public transmission)
In 1997, the Japanese Copyright Law was updated to expand the coverage of the author's right of communication to the public (established in 1986 under the name of rights of broadcasting and wire transmission) to the stage of making transmittable. The objects of the right of communication to the public are the activities of connecting a server to a network and the activities of transmission (Fujiwara 1999, 98). The Copyright Law defines the concepts public transmission (Copyright Law, article 2, paragraph 1 (7-2)) and interactive transmission (Copyright Law, article 2, paragraph 1 (9-4)). Public transmission means (in simple words) the transmission of radio communication or wire-telecommunication intended for direct reception by the public. In order to deal with the new context of the Internet, the (already existing) concept of interactive transmission (websites, video-on-demand, etc.) made a theoretical move and is now considered as residing under public transmission (besides wire diffusion and broadcasting) (Japan Copyright Office 2001, 30). Interactive transmission stands for "the public transmission made automatically in response to a request from the public" (read: in response to a click with the mouse on a hyperlink). Besides the definitions of both concepts, article 23 (1) of the Copyright Law provides that "(t)he author shall have the exclusive right to make the public transmission of his or her work (including the making transmittable of his or her work in the case of the interactive transmission)". We can consider this as an expansion of the right of public transmission of authors to the preceding stage of making transmittable (available) (Fujiwara 1999, 98-99; Japan Copyright Office 2001, 31) and even talk about a right of making transmittable that goes further than the WIPO Copyright Treaty (Ficsor 2002, 506).
Besides this and in order to comply with the WIPO Performances and Phonograms Treaty, a right of making transmittable was also granted to performers and phonogram producers. The scope here is especially to regulate the Internet broadcasting of live performances (Fujiwara 1999, 98; Japan Copyright Office 2001, 31). At first sight, one should say that the law was adapted to the new possibilities the Internet provides - uploading content to a server and accessing context through means of hyperlinks. Indeed, as the difference between simultaneous and non-simultaneous receptions fades (The Japanese Multimedia Report (Ficsor 2002, 198)), it seems to make sense to expand the right of public transmission of authors also to the stage of making transmittable (read: "uploading of content to a server that is accessible by the public"). But on the other hand, when we look at it from the viewpoint of the public domain, the wider reach of the concept of communication to the public means a big limitation of the reach of this public domain. However, I would like to say at this point that this is not a discourse against copyright protection. Indeed, in a lot of cases it seems to work as a system and to create an incentive to produce. We only should be aware that the current transformations in the legislation concerning intellectual property rights - in Japan and in other countries - go very fast and don't seem to take into account all facets of the story, nor remember the very basic goal of copyright, "to contribute to the development of culture".
The Copyright Management Business Law
4.2.2.3 The Copyright Management Business Law In November 2000 the Copyright Management Business Law was enacted. Its main purpose is to facilitate the establishment of new copyright management businesses, in order to "respond to the development of digital technologies and communication networks" (Japan Copyright Office 2001, 27). Meant here are right clearance systems, of which I will explain the risks in section 5, when talking about code. In general, we can say that this law will facilitate the rise of copyright management businesses and possibly create a further limitation of the reach of the public domain.
The right of transfer of ownership
As stated by the Japan Copyright Office, the right of transfer of ownership was established in 1999 in order to enrich the rights of authors. This means that authors, performers and phonogram producers can exercise their right concerning the transfer of the ownership of the original or copies of the work at the first legal transfer thereof. After this, the right will be extinguished (Japan Copyright Office 2001, 32). This new ruling can be considered as a contribution to the recent strengthening of author-centered regimes.
The right of presentation
Another aspect of the 1999 amendment of the Japanese Copyright Law was the so called extension of the right of presentation. Before, this right was only granted to cinematographic work (Japan Copyright Office 2001, 32). After the amendment it was extended to all kind of works and at the same time, exactly as the right of transfer of ownership, reaffirming the "importance" of the notion of the author.
External links
- Copyright Research and Information Center (CRIC) (http://www.cric.or.jp/cric_e/csj/csj.html)
- Internet en copyright: Japan als gevalstudie (http://akira.arts.kuleuven.ac.be/andreas/publi/thesis.pdf) (in Dutch - PDF)ja:著作権法