Japanese copyright laws consist of two parts: "Author's Rights", and "Neighboring Rights", and as such, "copyright" is a convenient collective term rather than a single concept in Japan.
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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 laws automatically provide the following rights, without the need for formal declaration or registration.
"Moral rights" are non-transferable. They remain with the author until they expire (see below). Although moral rights themselves cannot be waived, the exercise of moral rights is often waived by contract in certain situations, such as when an employee or contractor creates a derivative work of her/his employer's or principal's product. In such a situation, the moral rights would technically remain with the creator, but the creator would be potentially liable for breach of contract if he attempts to exercise those rights.
Unlike moral rights, economic rights can be freely transferred or relinquished. If the author transfers their economic rights to another, the holder of the economic rights becomes the "copyright holder", but the author retains authorship.
"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 generally have two non-transferable moral rights:
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 have the same economic rights as fixed aural performers, but do not have any moral 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.
If one of the above exceptions to reproduce a work publicly is used, the person reproducing the work must cite its source.
Hence, even when some materials are said to be "in the public domain" there can be some use restrictions. In that case, the term copyright-free is sometimes used instead. Many pre-1953 Japanese and non-Japanese films are considered to be in the public domain in Japan.[1]
Works authored by an individual, under their own name or a known pseudonym, are protected for fifty years following the individual's death. Works authored anonymously or under an unknown pseudonym, as well as works authored by corporations, where the individual author or authors are unknown, are protected for fifty years following publication. Japan is considering extending the duration of protection to seventy years to be more in line with the United States and other nations.
Cinematographic works are protected for seventy years following publication (or seventy years following creation, if the work is not published).[2] This update was made in 2004 to be more consistent with other nations around the world, as the previous term was fifty years. However, in 2006 the Tokyo District Court said that the 2004 law cannot be applied retroactively, so that all cinematographic works published (or created, if not published) before 1953 are now public domain.[3] However, in 2007 the Tokyo District Court ruled that for works (in particular from Akira Kurosawa) released before and in 1970 copyright protection is extended until 38 years after the original copyright holder's death.[4][5]
Neighboring rights apply for fifty years after the work is performed, transmitted, or put on sale.
Works authored by, or transferred to, residents of countries which were Allied Powers in World War II, before the effectuation of the San Francisco Peace Treaty, are given some prolonged protection by an exemption law. This extension compensates for the unprotected period in World War II, and varies with the country of the author or the copyright holder in the wartime. The prolongation is normally by 3,794 days (including Australia, Canada, France, United Kingdom, and the United States), but some countries ratified later, and have longer wartime (the longest is 4,413 days for Lebanon).
Very soon, CDs will be copy-protected in Japan. Avex and Warner Music, Japan have already sold copy-protected CDs [The Japan Times Online, 21 December 2002; ibid. 3 April 2002]. Steven McClure, journalist for The Japan Times Online, and author of the latter, quoted article comments on this evolution with skepticism. He states: "Many people, though, say copy-protected (or copy-controlled) CDs go against the concept of "fair use" — which means the user should be able to make copies of entertainment software as long as they're for personal use. One problem, of course, is defining just where personal use ends and illegitimate copying begins" [The Japan Times Online, 3 April 2002]. "And what about the copy-once system — a system that allows you to record television programs only once — which is now in a test phase in Japan, but will probably be used in the near future by several broadcasting companies?" [The Japan Times Online, 21 February 2002].
Once implemented, it may become impossible to play copyright-protected CDs on the CD-ROM drive of a computer.
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 added in advance 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).
The 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). The users of this equipment and media have to pay a fee, or "compensation", so that they can use the described materials for copying the 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 only way to get these downloadable audio files is by creating a sort of user account on a provider's website, and agreeing with a click-wrap contract that allows a user to download a certain number of audio files for a fixed payment. This kind of system is in fact a kind of trusted system, although we may not be aware of it.
Mamoru Kato, a JASRAC executive, said during a press conference after having set new fees for downloadable audio (in cooperation with the Network Music Rights Conference), that "the(se) new agreements will help enlighten Internet users, many of whom believe music can freely be copied from the Net. We have to teach them that you should not use other people's assets for free, by opening up a legal window for them to use" (The Japan Times Online, 18 August 2000). In other words, the clever user who tries to free-ride on the original genius of the creator of this or that audio file has to be educated, and forced to participate in a trusted system in order to obtain the desired audio files. No one has so far mentioned about either fair use or the reach of the public domain.
The above examples show that if trusted systems (and look-alikes) intend to play an important role in the future without intruding on anonymity, etc., one will have to incorporate these values as gaps in the architecture of these trusted systems. It is, however, doubtful whether this will happen.
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 it 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)):
Besides these two definitions, 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)". This can be considered 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 of a right of making transmittable that goes further than the WIPO Copyright Treaty (Ficsor 2002, 506).
Apart from 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 the 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.
This is not a discourse against "copyright protection". Indeed, in a lot of cases, copyright protection seems to work as a system, and creates 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 — is moving very fast, and do not seem to take into account all facets of the story, nor remember the very basic goal of copyright, which is "to contribute to the development of culture". While copyright protection is an urgent task, excessive protection that allows for no copying "may damage the functioning of society that thrives on impartiality and imitation" (The Japan Times Online, 21 February 2002).
In November 2000, the "Copyright Management Business Law" (4.2.2.3) 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). In general, we can say that this law will facilitate the rise of copyright management businesses, and possibly create a further limitation to the reach of the public domain.
In its book, "Copyright System in Japan", the title of this section is "(t)o secure the effectiveness of rights by utilizing new technologies" (Japan Copyright Office 2001, 32). This shows clearly that the Japanese government considers software to be a tool for enforcing copyright legislation. Not mentioned, however, is the possible negative side-effects concerning fair use (limitation on rights), or the reach of the public domain.
Under the section (in the same book) pertaining to the "(r)egulation of the circumvention of technological measures such as copy protection, etc.", it is stated that "transfer to the public (of) the ownership of, and manufacture, etc. of, the devices to circumvent technological measures (e.g. copy protection), which prevent copying of videogram (sic) or music CD without authorization, are regulated by the (sic) criminal penalty" (Japan Copyright Office 2001, 32). It is quite clear that with this regulation, it becomes impossible to circumvent the copyright-protection of intellectual property in the context of fair use. This means that when a CD, etc. is copyright-protected, there is not only technically no space for fair use, but also from the legislative side, there is no support for copying in the context of fair use.
The "(r)egulation of the alteration etc. of the rights management information" section strengthens the first regulation by saying that it is forbidden to remove rights management information attached to the work. However, it is to be said that this provision, and such, does not seem to limit immediately the reach of the public domain. Mentioning the source, etc. of the quoted material is generally considered as appropriate.
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. 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.
Another aspect of the 1999 amendment to the Japanese Copyright Law was the so called extension of the "right of presentation". Previously, this right was only granted to cinematographic work (Japan Copyright Office 2001, 32). After the amendment, it was extended to all kind of works, reaffirming at the same time, exactly as in the right of transfer of ownership, the importance of the notion of the author.
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