Japanese copyright law
Encyclopedia
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
.
s are expressed in a creative
way, and which falls within the literary, scientific, artistic or music
al 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 his economic rights to another, the holder of the economic rights becomes the "copyright holder", but the author retains authorship.
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.
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.
is sometimes used instead. Many pre-1953 Japanese and non-Japanese films are considered to be in the public domain in Japan.
Cinematographic works are protected for seventy years following publication (or seventy years following creation, if the work is not published). 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. 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.
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
).
. 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 program
s 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].
, 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.
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.
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 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.
Japan
Japan is an island nation in East Asia. Located in the Pacific Ocean, it lies to the east of the Sea of Japan, China, North Korea, South Korea and Russia, stretching from the Sea of Okhotsk in the north to the East China Sea and Taiwan in the south...
.
Applicability
Japanese copyright law protects all works "in which thoughts or sentimentSentiment
Sentiment can refer to activity of five material senses mistaking them as transcendental:*Feelings and emotions...
s are expressed in a creative
Creativity
Creativity refers to the phenomenon whereby a person creates something new that has some kind of value. What counts as "new" may be in reference to the individual creator, or to the society or domain within which the novelty occurs...
way, and which falls within the literary, scientific, artistic or music
Music
Music is an art form whose medium is sound and silence. Its common elements are pitch , rhythm , dynamics, and the sonic qualities of timbre and texture...
al domain". The laws automatically provide the following rights, without the need for formal declaration or registration.
Moral rights
- Divulgence: The authorAuthorAn author is broadly defined as "the person who originates or gives existence to anything" and that authorship determines responsibility for what is created. Narrowly defined, an author is the originator of any written work.-Legal significance:...
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., under pseudonymPseudonymA pseudonym is a name that a person assumes for a particular purpose and that differs from his or her original orthonym...
or anonymityAnonymityAnonymity is derived from the Greek word ἀνωνυμία, anonymia, meaning "without a name" or "namelessness". In colloquial use, anonymity typically refers to the state of an individual's personal identity, or personally identifiable information, being publicly unknown.There are many reasons why a...
). - Integrity: The author can control the modification of a work.
"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
Derivative work
In United States copyright law, a derivative work is an expressive creation that includes major, copyright-protected elements of an original, previously created first work .-Definition:...
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
Breach of contract
Breach of contract is a legal cause of action in which a binding agreement or bargained-for exchange is not honored by one or more of the parties to the contract by non-performance or interference with the other party's performance....
if he attempts to exercise those rights.
Economic rights
- Reproduction: The author can control the reproduction of a work, including photography, recording, downloading, and the like.
- Communication: The author can control how a work is to be transmitted, communicated, broadcastBroadcastingBroadcasting is the distribution of audio and video content to a dispersed audience via any audio visual medium. Receiving parties may include the general public or a relatively large subset of thereof...
, performed, exhibited, etc., including how copies of the work are to be distributed. - Adaptation: The author can control the adaptationAdaptationAn adaptation in biology is a trait with a current functional role in the life history of an organism that is maintained and evolved by means of natural selection. An adaptation refers to both the current state of being adapted and to the dynamic evolutionary process that leads to the adaptation....
of a work through translationTranslationTranslation is the communication of the meaning of a source-language text by means of an equivalent target-language text. Whereas interpreting undoubtedly antedates writing, translation began only after the appearance of written literature; there exist partial translations of the Sumerian Epic of...
, dramatization, cinemaFilmA film, also called a movie or motion picture, is a series of still or moving images. It is produced by recording photographic images with cameras, or by creating images using animation techniques or visual effects...
tization, 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
Internet
The Internet is a global system of interconnected computer networks that use the standard Internet protocol suite to serve billions of users worldwide...
), 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. TelevisionTelevision
Television is a telecommunication medium for transmitting and receiving moving images that can be monochrome or colored, with accompanying sound...
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, except for architecture, 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 remunerated if the exam is performed for-profit.
- News: Unless a newspaper or wire serviceWire ServiceWire Service is an American drama series that aired on ABC as part of its 1956-57 season lineup.-Synopsis:Wire Service focuses on three reporters for the fictional Trans-Globe wire service, which was similar to real-life news wire services such as the Associated Press and United Press International...
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 remunerated, 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 anthologyAnthologyAn anthology is a collection of literary works chosen by the compiler. It may be a collection of poems, short stories, plays, songs, or excerpts...
of the author's works. - Publication for the blind: BrailleBrailleThe Braille system is a method that is widely used by blind people to read and write, and was the first digital form of writing.Braille was devised in 1825 by Louis Braille, a blind Frenchman. Each Braille character, or cell, is made up of six dot positions, arranged in a rectangle containing two...
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 one of the above exceptions to reproduce a work publicly is used, the person reproducing the work must cite its source.
Public domain
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-freeCopyright-free
Copyright-free is a conventional expression extensively used in Japan by authors whose works can be used freely regardless of copyright. It is distinguished from public domain but is not entirely a commitment to copyleft.-External links:...
is sometimes used instead. Many pre-1953 Japanese and non-Japanese films are considered to be in the public domain in Japan.
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, 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). 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. However, in 2007 the Tokyo District Court
Tokyo District Court
is a district court located at 1-1-4 Kasumigaseki, Chiyoda, Tokyo, Japan. -References:...
ruled that for works (in particular from Akira Kurosawa
Akira Kurosawa
was a Japanese film director, producer, screenwriter and editor. Regarded as one of the most important and influential filmmakers in the history of cinema, Kurosawa directed 30 filmsIn 1946, Kurosawa co-directed, with Hideo Sekigawa and Kajiro Yamamoto, the feature Those Who Make Tomorrow ;...
) released before and in 1970 copyright protection is extended until 38 years after the original copyright holder's death.
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
Allies of World War II
The Allies of World War II were the countries that opposed the Axis powers during the Second World War . Former Axis states contributing to the Allied victory are not considered Allied states...
, 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
World War II
World War II, or the Second World War , was a global conflict lasting from 1939 to 1945, involving most of the world's nations—including all of the great powers—eventually forming two opposing military alliances: the Allies and the Axis...
, 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
Australia
Australia , officially the Commonwealth of Australia, is a country in the Southern Hemisphere comprising the mainland of the Australian continent, the island of Tasmania, and numerous smaller islands in the Indian and Pacific Oceans. It is the world's sixth-largest country by total area...
, Canada
Canada
Canada is a North American country consisting of ten provinces and three territories. Located in the northern part of the continent, it extends from the Atlantic Ocean in the east to the Pacific Ocean in the west, and northward into the Arctic Ocean...
, France
France
The French Republic , The French Republic , The French Republic , (commonly known as France , is a unitary semi-presidential republic in Western Europe with several overseas territories and islands located on other continents and in the Indian, Pacific, and Atlantic oceans. Metropolitan France...
, United Kingdom
United Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...
, and the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
), but some countries ratified
Ratification
Ratification is a principal's approval of an act of its agent where the agent lacked authority to legally bind the principal. The term applies to private contract law, international treaties, and constitutionals in federations such as the United States and Canada.- Private law :In contract law, the...
later, and have longer wartime (the longest is 4,413 days for Lebanon
Lebanon
Lebanon , officially the Republic of LebanonRepublic of Lebanon is the most common term used by Lebanese government agencies. The term Lebanese Republic, a literal translation of the official Arabic and French names that is not used in today's world. Arabic is the most common language spoken among...
).
Copy-protected CDs
Very soon, CDs will be copy-protected in JapanJapan
Japan is an island nation in East Asia. Located in the Pacific Ocean, it lies to the east of the Sea of Japan, China, North Korea, South Korea and Russia, stretching from the Sea of Okhotsk in the north to the East China Sea and Taiwan in the south...
. Avex and Warner Music, Japan have already sold copy-protected CDs
Copy Control
Copy Control was the generic name of a copy prevention system, used from 2001 until 2006 on several digital audio disc releases by EMI Group and Sony BMG Music Entertainment in several regions...
[The Japan Times Online
The Japan Times
The Japan Times is an English language newspaper published in Japan. Unlike its competitors, the Daily Yomiuri and the International Herald Tribune/Asahi Shimbun, it is not affiliated with a Japanese language media organization...
, 21 December 2002; ibid. 3 April 2002]. Steven McClure, journalist
Journalist
A journalist collects and distributes news and other information. A journalist's work is referred to as journalism.A reporter is a type of journalist who researchs, writes, and reports on information to be presented in mass media, including print media , electronic media , and digital media A...
for The Japan Times Online, and author of the latter, quoted article comments on this evolution
Evolution
Evolution is any change across successive generations in the heritable characteristics of biological populations. Evolutionary processes give rise to diversity at every level of biological organisation, including species, individual organisms and molecules such as DNA and proteins.Life on Earth...
with skepticism
Skepticism
Skepticism has many definitions, but generally refers to any questioning attitude towards knowledge, facts, or opinions/beliefs stated as facts, or doubt regarding claims that are taken for granted elsewhere...
. 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
Entertainment
Entertainment consists of any activity which provides a diversion or permits people to amuse themselves in their leisure time. Entertainment is generally passive, such as watching opera or a movie. Active forms of amusement, such as sports, are more often considered to be recreation...
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 program
Television program
A television program , also called television show, is a segment of content which is intended to be broadcast on television. It may be a one-time production or part of a periodically recurring series...
s 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].
Copyright-protected CDs on CD-ROMs
Once implemented, it may become impossible to play copyright-protected CDs on the CD-ROM drive of a computer.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 added in advance to the prices of specified digital recording equipment (DATDigital Audio Tape
Digital Audio Tape is a signal recording and playback medium developed by Sony and introduced in 1987. In appearance it is similar to a compact audio cassette, using 4 mm magnetic tape enclosed in a protective shell, but is roughly half the size at 73 mm × 54 mm × 10.5 mm. As...
, DCC
Digital Compact Cassette
Digital Compact Cassette was a magnetic tape sound recording format introduced by Philips and Matsushita in late 1992 and pitched as a successor to the standard analog cassette. It was also a direct competitor to Sony's MiniDisc but neither format toppled the then ubiquitous analog cassette...
, MD
MiniDisc
The disc is permanently housed in a cartridge with a sliding door, similar to the casing of a 3.5" floppy disk. This shutter is opened automatically by a mechanism upon insertion. The audio discs can either be recordable or premastered. Recordable MiniDiscs use a magneto-optical system to record...
, CD-R
CD-R
A CD-R is a variation of the Compact Disc invented by Philips and Sony. CD-R is a Write Once Read Many optical medium, though the whole disk does not have to be entirely written in the same session....
, CD-RW
CD-RW
A CD-RW is a rewritable optical disc. It was introduced in 1997, and was known as "CD-Writable" during development. It was preceded by the CD-MO, which was never commercially released....
), and specified recording media (DVCR, D-VHS
D-VHS
D-VHS is a digital recording format developed by JVC, in collaboration with Hitachi, Matsushita, and Philips. The "D" in D-VHS originally stood for Data VHS, but with the expansion of the format from standard definition to high definition capability, JVC renamed it Digital VHS and uses that...
, MVDISC, DVD-RW
DVD-RW
A DVD-RW disc is a rewritable optical disc with equal storage capacity to a DVD-R, typically 4.7 GB. The format was developed by Pioneer in November 1999 and has been approved by the DVD Forum. The smaller Mini DVD-RW holds 1.46 GB, with a diameter of 8 cm.The primary advantage of DVD-RW over...
, DVD-RAM
DVD-RAM
DVD-RAM is a disc specification presented in 1996 by the DVD Forum, which specifies rewritable DVD-RAM media and the appropriate DVD writers. DVD-RAM media have been used in computers as well as camcorders and personal video recorders since 1998.-Design:DVD-RAM is one of three competing...
) (Japan Copyright Office 2001, 17; ibid. 24).
The compensation is collected and distributed by SARAH
SARAH
SARAH is a fictional smart house in the Sci Fi TV series Eureka. SARAH is the home of Sheriff Jack Carter, the main character of the series, and was designed by Douglas Fargo to be the prototype home of the future...
(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.
Downloadable audio for mobile phones
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 contractContract
A contract is an agreement entered into by two parties or more with the intention of creating a legal obligation, which may have elements in writing. Contracts can be made orally. The remedy for breach of contract can be "damages" or compensation of money. In equity, the remedy can be specific...
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
Trusted system
In the security engineering subspecialty of computer science, a trusted system is a system that is relied upon to a specified extent to enforce a specified security policy...
, 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
Internet
The Internet is a global system of interconnected computer networks that use the standard Internet protocol suite to serve billions of users worldwide...
users, many of whom believe music can freely be copied from the Net
Internet
The Internet is a global system of interconnected computer networks that use the standard Internet protocol suite to serve billions of users worldwide...
. 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
Fair use
Fair use is a limitation and exception to the exclusive right granted by copyright law to the author of a creative work. In United States copyright law, fair use is a doctrine that permits limited use of copyrighted material without acquiring permission from the rights holders...
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
Architecture
Architecture is both the process and product of planning, designing and construction. Architectural works, in the material form of buildings, are often perceived as cultural and political symbols and as works of art...
of these trusted systems. It is, however, doubtful whether this will happen.
Right of communication to the public
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 serverServer (computing)
In the context of client-server architecture, a server is a computer program running to serve the requests of other programs, the "clients". Thus, the "server" performs some computational task on behalf of "clients"...
to a network
Computer network
A computer network, often simply referred to as a network, is a collection of hardware components and computers interconnected by communication channels that allow sharing of resources and information....
, 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 "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 (websiteWebsiteA website, also written as Web site, web site, or simply site, is a collection of related web pages containing images, videos or other digital assets. A website is hosted on at least one web server, accessible via a network such as the Internet or a private local area network through an Internet...
s, 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 hyperlinkHyperlinkIn computing, a hyperlink is a reference to data that the reader can directly follow, or that is followed automatically. A hyperlink points to a whole document or to a specific element within a document. Hypertext is text with hyperlinks...
).
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
WIPO Performances and Phonograms Treaty
The WIPO Performances and Phonograms Treaty is an international treaty signed by the member states of the World Intellectual Property Organization was adopted in Geneva on December 20, 1996...
, 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
Legislation
Legislation is law which has been promulgated by a legislature or other governing body, or the process of making it...
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
Culture
Culture is a term that has many different inter-related meanings. For example, in 1952, Alfred Kroeber and Clyde Kluckhohn compiled a list of 164 definitions of "culture" in Culture: A Critical Review of Concepts and Definitions...
". While copyright protection is an urgent task, excessive protection that allows for no copying "may damage the functioning of society that thrives on impartiality
Impartiality
Impartiality is a principle of justice holding that decisions should be based on objective criteria, rather than on the basis of bias, prejudice, or preferring the benefit to one person over another for improper reasons.-Philosophical concepts of impartiality:According to Bernard Gert, "A is...
and imitation
Imitation
Imitation is an advanced behavior whereby an individual observes and replicates another's. The word can be applied in many contexts, ranging from animal training to international politics.-Anthropology and social sciences:...
" (The Japan Times
The Japan Times
The Japan Times is an English language newspaper published in Japan. Unlike its competitors, the Daily Yomiuri and the International Herald Tribune/Asahi Shimbun, it is not affiliated with a Japanese language media organization...
Online, 21 February 2002).
Copyright management business law
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
Technology
Technology is the making, usage, and knowledge of tools, machines, techniques, crafts, systems or methods of organization in order to solve a problem or perform a specific function. It can also refer to the collection of such tools, machinery, and procedures. The word technology comes ;...
" (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
Rights
Rights are legal, social, or ethical principles of freedom or entitlement; that is, rights are the fundamental normative rules about what is allowed of people or owed to people, according to some legal system, social convention, or ethical theory...
), 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
Criminal law
Criminal law, is the body of law that relates to crime. It might be defined as the body of rules that defines conduct that is not allowed because it is held to threaten, harm or endanger the safety and welfare of people, and that sets out the punishment to be imposed on people who do not obey...
penalty
Sentence (law)
In law, a sentence forms the final explicit act of a judge-ruled process, and also the symbolic principal act connected to his function. The sentence can generally involve a decree of imprisonment, a fine and/or other punishments against a defendant convicted of a crime...
" (Japan Copyright Office 2001, 32). It is quite clear that with this regulation, it becomes impossible to circumvent the copyright-protection of intellectual property
Intellectual property
Intellectual property is a term referring to a number of distinct types of creations of the mind for which a set of exclusive rights are recognized—and the corresponding fields of law...
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.
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. 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.Right of presentation
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.External links
- Translations of laws and regulations in compliance with Standard Bilingual Dictionary by the Cabinet SecretariatCabinet SecretariatThe Cabinet Secretariat is responsible for the administration of the Government of India. It functions from the Secretariat Building, New Delhi, where most of Cabinet of India sits...
: Index た：Copyright Act - 著作権法, Act for Establishment of the Intellectual Property High Court - 知的財産高等裁判所設置法 - Copyright Research and Information Center (CRIC)