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I. What Is "Copyright"?
-- Copyright, A Rule For Everybody, Needs More Public Awareness & Respect --
The term, Intellectual Property Rights (IPR) is often used these days
in a number of occasions. This concept is classified into the following
three categories. One of them is "Industrial Property Rights" such as
patent, design and trademark. Another one is "Copyright" for cultural
creations the legal protection of which is provided for in the
Copyright Law. The cultural creations protected by this system are
called "works of authorship": such creative expressions of thoughts or
sentiments as literary, scientific, artistic and musical one, and the
creator is called "author".
Industrial property rights are granted only upon such "formalities" as
registration. On the other hand, copyright is granted automatically
without any formality (non-formality rule) at the moment of the
creation up to the end of a period of fifty years following the death
of the author. The protection and people's awareness of copyright are
said to reflect the degree of cultural development of the country, and
therefore, copyright systems should be understood by a wide range of
people.
II. What Is "Work"?
-- A drawing of a little kid is also a work with full protection.--
The following table shows the categories and examples of works of
authorship. The granting of copyright has nothing to do with the
artistic value or fineness to be found in them. All creative
expressions of original thoughts or sentiments of the creator which are
not copies of others are protected including, such things as a drawing
of a three-year-old kid and a writing of an elementary school pupil.
Some countries with a lower level of copyright protection require
"fixation" in a tangible medium to be protected as a work, however,
under the Japanese Copyright Law it is not required, and therefore,
"live" works are also protected automatically, which is extremely
important in the broadband age.
Categories and examples of works of authorship
| Literary Works: |
speech, treatise, essay, novel, scenario, poem, lecture, etc. |
| Musical Works: |
musical piece, lyric with music, etc. |
| Choreographic Works & Pantomimes: |
choreography of dance, ballet, pantomime, etc. |
| Artistic Works: |
painting, engraving, sculpture, cartoon, calligraphy, stage setting, etc. including industrial arts |
| Architectural Works: |
architecture (Blueprint belongs to figurative
works.) |
| Map and Figurative Works: |
plan, chart, model, etc. of scientific nature
and map |
| Cinematographic Work: |
movie, fixed TV program, video, etc. |
| Photographic Work: |
photo, gravure, etc. |
| Program Works: |
computer program |
Other categories of works made/developed from original works
| Derivative Work: |
a work created by translating, musically
arranging, cinematizing, transforming, or otherwise adapting a pre-existing work |
| Compilation: |
collection of works and/or data such as
encyclopedia, dictionary, newspaper, journal and anthology |
| Database: |
collection of works and/or data the information
in which can be searched for and read with the aid of a computer |
Author's right is not granted with respect to the following works:
| (1) |
the Constitution and other laws and regulations |
| (2) |
notifications, instructions, circular notices and the like issued by
organs of the State or local public entities |
| (3) |
judgments, decisions, orders and decrees of law courts as well as
rulings and decisions made by administrative organs in proceedings similar to judicial ones |
| (4) |
translations and compilations, of those materials mentioned in the
preceding three items, made by organs of the State or local public entities |
| Q1. |
Is an "idea" considered as a work to be protected? |
|
|
| A1. |
No. A work is an "expression"
which is perceptible to people. Therefore, an idea itself is not a work
to be protected. However, if the idea is written (expressed) in
such materials as a book, the expression is a work. |
| Q2. |
Are such things as "slogan", "watchword" and "title" considered as works to be protected? |
|
|
| A2. |
It depends. Usually, they are not protected as works, however, some
slogans and watchwords (e.g. extremely long ones) may be considered as
works.
This issue should not be discussed in terms of how they are called but
whether they are actually creative expressions of thoughts or
sentiments. |
| Q3. |
Is a simple photo of a pre-existing painting protected as an independent
work? |
|
|
| A3. |
No. Taking a photo of a pre-existing painting is not creation of a
new work to be protected independently, because, the act of simply
reproducing a pre-existing thing with a machine has no creativity. As
such photo is a copy of the original painting, exploitation of the
photo calls for the authorization of the painter rather than the
photographer. However, photos of pre-existing sculptures are, in many
cases, works to be protected as creativity is often found in the act of
expressing the three-dimensional sculpture on a two-dimensional photo.
|
| Q4. |
Is a stenographic record of a folk tale or a legend considered as a work to be protected? |
|
|
| A4. |
No. Stenographic records of folk tales or legends with no or little
change are not works of the stenographer as they have no creativity.
However, if a new story is written with new episodes and expressions
based on the plot of the original folk tale or legend, it can be
considered as a new work to be protected as it has creativity. Such
judgment, which is extremely difficult in some cases, should be made
for each individual case. |
| Q5. |
What is "joint-work"? |
|
|
| A5. |
"Joint-work" means a work created by two or more people the
contribution of each of them in which cannot be separately exploited.
Therefore, copyright of such a work should be exercised collectively by
all authors concerned. |
| Q6. |
Are computer programs and databases protected as works of authorship? |
|
|
| A6. |
Yes. The protection of computer programs was made clear by an
amendment of the Copyright Law in 1985. Computer programs are protected
as copyrighted works of authorship in most countries in the world. As
to databases, the protection was also made clear in another amendment
of the Copyright Law in 1986. In the Japanese Copyright Law,
computer-readable collection is called "database" and
non-computer-readable collection is called "compilation". |
III. What Rights Are Granted to Authors?
-- "Moral Rights" and "Economic Rights". --
Author's right is divided into two categories: "moral rights" to
protect author's moral/emotional interests and "economic rights" to
protect author's economic interests.
Moral rights are exclusively personal to the author, and therefore,
can never be transferred to other people including heirs (the
"inalienability" of moral rights). As moral rights are of personal
nature and untransferable, they are exhausted at the death of the
author, however, moral interests of the late author are protected to
some extent by the Copyright Law even after his/her death.
On the other hand, economic rights can be transferred by sale,
assignment, succession, etc. partly or totally. Therefore, if an
economic right is assigned to someone, the assignee will become the
"copyright owner" although the original creator continues to be the
"author" with moral rights.
Who is the author?
| A work created by an individual |
The author is the creator.
(In the case of a joint-work all creators share the authorship of the work.) |
| A work created by an employee |
The author is the employer under the following conditions:
(a)The work was created by the initiative of the employer.
(b)The work was created by the employee as his/her duty.
(c)The work is to be open to the public under the name of the employer.
(d)There is no contradictory provision in the contract of employment.
|
Right of Authors
A. Moral Rights
| Right for divulgence: |
The right to control the act of making an
unopened work open to the public in terms of whether is should be made
open to the public or not, when to be opened, how to be opened, etc. |
| Right for authorship: |
The right to control the act of indicating the
name of the author in terms of whether any name should be indicated,
whether the name should be the true name or pseudonym, etc. |
| Right for integrity: |
The
right to control the act of distorting, mutilating or modifying a work
(whether or not such an act damages the authors honor or prestige). |
B. Economic rights
(a) Reproduction
| Right of reproduction: |
The
right to control the act of making copies of a work by any such means
as printing, photography, reprography, sound recording, visual
recording, downloading, etc. |
(b) Communication to the public without copies
| Right of public transmission: |
The
right to control the act of publicly transmitting a work by any means
such as the Internet, TV/radio, cable diffusion, telefax, etc.
(including the act of both "making transmittable" in a server with or
without reproduction within, and "transmission" from the server to a
member of the public upon access). |
| Right of public communication by receiver: |
The right to control the act of publicly communicating a transmitted work by means of a receiving apparatus (e.g. TV set). |
| Right of public display: |
The right to control the act of publicly showing a work (moving or non-moving image, texts, etc.) by means of an apparatus. |
| Right of public performance: |
The right to control the act of publicly performing a work. |
| Right of public recitation: |
The right to control the act of publicly reciting a work. |
| Right of public exhibition: |
The right to control the act of publicly exhibiting the original of an artistic work or an unpublished photographic work. |
(c) Communication to the public with copies
| Right of transfer of ownership: |
The right to control the act of publicly transferring ownership of copies of a work. (with international exhaustion) |
| Right of public rental: |
The right to control the act of publicly renting copies of a work. |
| Right of distribution: |
The right to control the act of distributing (transferring ownership or renting) a cinematographic work.(without exhaustion)
|
| Right of public Lending: |
The remuneration right of public lending of cinematographic work. |
(d) Rights Related to Derivative work
| Right of adaptation: |
The
right to control the act of adapting a work by such means as
translation, musical arrangement, transformation, dramatization
cinematization, etc. |
| Right of exploitation of derivative works: |
The right to control all the above acts in terms of derivative works adapted from the original work of the author. |
| Q1. |
Is any formality needed to be granted author's right? |
|
|
| A1. |
No. Author's right is granted automatically at the moment of the
creation of a work. Therefore, no formality is required to have
relevant rights. |
| Q2. |
Are there any exceptional cases in which unauthorized modification of a work is permissible? |
|
|
| A2. |
Yes. Any modification or a work, whether of not it damages the
author's honor or prestige, calls for the authorization of the author,
who has the right of integrity as one of the moral rights, in
principle. However, there are some exceptional cases, and in such cases
as the following the author's authorization is not needed: change in
writing manners (e.g. limiting the use of Chinese characters) for
school textbooks; repair or renovation of an architectural work;
"version-up" of a computer program. These are the cases in which such
modifications are indispensable in the light of the nature of the work
as well as the purposes/ways of usage. |
| Q3. |
Does so-called "manuscript purchasing" mean assignment of copyright? |
|
|
| A3. |
No. Unless copyright is clearly transferred by a contract, it
always remains on the author's side. So-called "manuscript purchasing",
which simply means the relevant payment is made only once (rather than
many times based on the number of copies produced/sold), does not
constitute any assignment of author's right. Also, different business
sectors seem to have different interpretations to the term "purchase",
and it may cause problems in the future especially in the case of oral
contract. Therefore, a clear written contract should be prepared when
the transfer of copyright is intended. |
| Q4. |
Is it necessary to have the authorization of the author of the original work in order to exploit its translation? |
|
|
| A4. |
Yes. As for a derivative work such as those translated, dramatized,
cinematized, etc. the author of the original work, in principle, has
the same set of rights as the author of the derivative work. Therefore,
it is necessary to have the authorization of the author of both the
original and the translation to publish a translated work. |
| Q5. |
Is it permissible for a schoolteacher to record and edit TV programs to make a material for his/her own teaching? |
|
|
| A5. |
Yes. A teacher actually in charge of teaching at non-profit-making
school may make copies of works already open to the public,
performances, phonograms and wire/wireless broadcasting programs for
the purpose of use in his/her own teaching, However, due attention
should be paid to the moral rights of the such as the right of
integrity. |
| Q6. |
Who has the author's right of a joint-work? |
|
|
| A6. |
Author's right of a joint-work is owned jointly by all the
co-authors concerned. The rights should be exercised, in principle,
based on unanimous agreements of all of them. In the case of a
cinematographic work alone, if the authors have undertaken to
participate in the production by a film maker, the economic rights are
automatically transferred to the film maker. |
| Q7. |
Is it necessary to have the authorization of the author to upload his/her work in a Homepage? |
|
|
| A7. |
Yes. The act of "uploading" a work in a server constitutes the act
of "making transmittable", by which the work may be transmitted to
members of the public upon access in the future. This act can be done
with or without "reproduction" within the server; uploading in a
homepage is a typical example of the former, and so-called "web-cast"
is that of the latter. The right of public transmission covers both the
act of "making transmittable" in a server (whether or not actual
transmission from the server has already taken place) and that of
"public transmission" from a server to members of the public upon
access. Therefore, the uploading a work in a homepage always calls for
the authorization of the author. |
IV. How Long Does Author's Right Continue?
-- In Principle, 50 Years Time after the Author's Death. --
As has been mentioned, "moral rights" of author are exhausted at
his/her death, however, moral interests of the late author are
protected to some extent by the Copyright Law even after his/her death.
On the other hand, "economic rights" of author continue to subsist
from the time of the work's creation up to the end of a period of fifty
years following the death of the author. Some exceptions are as follows:
| Type of Work |
Term of Protection |
| Works with a true name or a widely known pen
name: |
50 years after the death |
| Works with a pen name or no name: |
50 years after the making public (50 years after
the death, if 50 years have clearly passed after the death of the author) |
| Works with the name of a body corporate: |
50 years after the making public (50 years after
the creation, if not made public for 50 years) |
| Cinematographic works: |
70 years after the making public (70 years after
the creation, if not made public for 70) |
(note) The term is calculated from the beginning of the year
following the date when such event as death occurred.
If there is no heir after the death of the author, his/her copyright is to
expire.
| Q1. |
How long will works of late Osamu Tezuka (the author of "Astro Boy") protected? |
|
|
| A1. |
Osamu Tezuka passed away in 1989. Osamu Tezuka was actually a pen
name, however, as it was widely known, his works will be protected up
to fifty years after his death. In more concrete terms, the term should
be calculated, starting from January 1, 1990, and copyright in his
works will expire at the end of December 31, 2039. |
| Q2. |
What is "a work with the name of a body corporate"? |
|
|
| A2. |
It means a work which has been made public with the name of a
company, association, organization, foundation, etc. whether the author
is a person or not. |
| Q3. |
How is the term of protection calculated in the case of joint-works? |
|
|
| A3. |
The term of protection of a joint-work is to be calculated based on the death of the last surviving co-author. |
| Q4. |
When the author's economic rights in a cinematographic work expire,
do the rights of original works, such as a novel, scenario, etc., also
expire? |
|
|
| A4. |
Yes. However, due attention should be paid to the following two
points. Firstly, the economic rights of the originals (adapted in the
cinematographic work) expires only in terms of the exploitation of that
cinematographer work. Secondly, the economic rights of the works which
are "copied" (rather than "adapted") within the cinematographic work
does not expire. |
| Q5. |
Are there any countries in which the basic term of protection is not fifty years? |
|
|
| A5. |
Yes. The following are some examples of such countries:
| Mexico: |
100 years |
| Colombia: |
80 years |
| Germany, France, Italy, UK, Argentine, Brazil, Russian and USA: |
70 years |
| India: |
60 years |
| Iran: |
30 years |
|
V. What Are Neighboring Rights?
--Rights Granted to Performers, etc.--
Neighboring rights are granted to those who play important roles in
"communication to the public" of works and other information, but do
not create works. Under the Japanese Copyright Law, the following four
categories of right owners are granted neighboring rights: (a)
performers, (b) phonogram producers, (c) broadcasters, and (d) wire
diffusers.
(Key Words)
Performer:
actors/actresses, dancers, singers, musical
players, conductors, etc. including those who perform something that
are not works such as acrobats, jugglers, etc. |
Phonogram producer:
those who first recorded sounds in
something. |
Broadcaster:
those who engage in (wireless) broadcasting as business. |
Wire diffuser:
those who engage in wire diffusion as
business. |
|
|
(A) Rights of Performers
Moral Rights
| Right of authorship: |
The right to control the act of indicating the name of the performer. |
| Right of integrity: |
The
right to control the act of distorting, mutilating or modifying
performances in a manner prejudicial to the performer's reputation. |
Economic Rights
Live Performance
| Right of fixation: |
The right to control the act of fixing live performances. |
| Right of making transmittable: |
The
right to control the act of making live performances transmittable in
an interactive transmission server (for Internet broadcasting,
web-casting, etc.). |
| Right of broadcasting and wire diffusion: |
The right to control the act of broadcasting and diffusing by wire live performances. |
Fixed Aural Performances
| Right of reproduction: |
The right to control the act of making copies of fixed aural performances. |
| Right of making transmittable: |
The right to control the act of making fixed aural performances transmittable in an interactive transmission server. |
| Right of transfer of ownership: |
The right to control the act of publicly transferring ownership of fixed aural performances (with international exhaustion). |
| Right of rental: |
The
right to control the act of renting fixed aural performances(exclusive
right for the first one year; and remuneration right for the remaining
49 years).
|
| Remuneration right for broadcasting and wire diffusion: |
The right to receive fees from broadcasters and wire diffusers which broadcasted or diffused by wire fixed aural performances.
|
(B) Rights of Phonogram Producers
| Right of reproduction: |
The right to control the act of making copies of phonograms |
| Right of making transmittable: |
The right to control the act of making phonograms transmittable in an interactive transmission server. |
| Right of transfer of ownership: |
The right to control the act of publicly transferring ownership of copies of phonograms (with international exhaustion). |
| Right of rental: |
The
right to control the act of renting phonograms (exclusive right for the
first one year; and remuneration right for the remaining 49 years). |
| Remuneration right for broadcasting and wire diffusion: |
The
right to receive fees from broadcasters and wire diffusers which
broadcasted or diffused by wire fixed commercial phonograms. |
(C) Rights of Broadcasters
| Right of reproduction: |
The right to control the act of reproduction of trnsmitted programs (including fixation, and photographing TV programs). |
| Right of making transmittable: |
The
right to control the act of making transmitted programs transmittable
in an interactive transmission server without fixation (by
e.g.web-casting). |
| Right of retransmission: |
The right to control the act of rebroadcasting or diffusing by wire transmitted programs. |
| Right of communication to the public by enlarging devices: |
The right to control the act of showing transmitted TV programs to the public by enlarging receiving devices. |
(D) Rights of Wire Diffusers
| Right of reproduction: |
The right to control the act of reproduction of trnsmitted programs (including fixation, and photographing TV programs). |
| Right of making transmittable: |
The
right to control the act of making transmitted programs transmittable
in an interactive transmission server without fixation (by
e.g.web-casting). |
| Right of retransmission: |
The right to control the act of rediffusing by wire or broardcasting transmitted programs. |
| Right of communication to the public by enlarging devices: |
The right to control the act of showing transmitted TV programs to the public by enlarging receiving devices. |
Term of Protection of Neighboring Rights
| Performance: |
50 years after the performance |
| Phonogram: |
50 years after the first sale (50 years after the first fixation, if not publicly soled for 50 years) |
| Broadcasting Program: |
50 years after the transmission |
| Wire Diffusion Program: |
50 years after the transmission |
| Q1. |
What is the source of the term, "neighboring rights"? |
|
|
| A1. |
It derived from an English phrase, "certain rights called neighboring on copyright". |
| Q2. |
Do neighboring rights include "moral rights"? |
|
|
| A2. |
Yes. However, it is only "performer's rights" that includes moral
rights: right of authorship and right of integrity. They were granted
by an amendment of the Copyright Law in 2002, covering both aural and
audiovisual performances. The "WIPO Performances and Phonograms Treaty"
stipulates performer's moral right but in terms of only "aural"
performances. |
| Q3. |
How is the remuneration right of performers and phonogram producers
for broadcasting and wire diffusion of commercial phonograms managed? |
|
|
| A3. |
Based on the relevant provisions in the Copyright Law, performers
and phonogram producers are granted the remuneration right to receive
fees when commercial phonograms (fixing their performances or
phonograms) are directly used in broadcasting or wire diffusion. This
right is to be exercised only through the single collective society for
each which is designated by the Government.
At present, GEIDANKYO (Japan Council of Performers' Organizations) and
the RIAJ (Recording Industry Association of Japan) are designated
respectively as such collective societies. The amount of the fee is
fixed through negotiations and contracts between these societies and
broadcasting or wire diffusion organizations, and the collected fees
are
distributed based on the rules of each society. |
| Q4. |
How is the act of rental at music CD rental shops related to copyright? |
|
|
| A4. |
The act of rental of commercial phonograms is related to relevant
rights of rental of three categories of right owners: author, performer
and phonogram producer. Among them, author's right of rental is always
an exclusive right, while those of performer and phonogram producer
automatically change from an exclusive right to a remuneration right
one year after the first sale to the public. |
| Q5. |
How was the neighboring rights system changed for the digitization of terrestrial broadcasting? |
|
|
| A5. |
Terrestrial broadcasting in Japan is supposed to be abolished and chanted into digital system by 2011, which will bring about not a few poor reception areas. With a view to coping with this problem and facilitate the transition to the digital system, so-called "IP (Internet Protocol) Multicast Transmission" is planned to be used for the simultaneous retransmission to such poor reception areas.
However, the IP Multicast Transmission is a kind of "interactive transmission" covered by the exclusive rights, i.e. the right of making available, of performers and phonogram producers, and therefore, the simultaneous retransmission called for the authorization of all relevant performers and phonogram producers. For the simultaneous retransmission of analog broadcasting, wire diffusion systems were widely used, and in this case, the exclusive rights of performers and phonogram producers had already been limited to remuneration rights or denied totally.
To balance such different cases and also to facilitate the simultaneous retransmission of digital terrestrial broadcasting by IP Multicast transmission, the Copyright Law was amended so that the exclusive rights of performers and phonogram producers be degraded to remuneration rights in terms of the simultaneous retransmission by IP Multicast transmission for the receiving area of the original broadcasting. Also, for the case of the simultaneous retransmission by wire diffusion, remuneration rights of performers and phonogram producers were newly established for balance.
These amendments are solely for neighboring rights, and therefore, authorization by the relevant authors is needed for any type of simultaneous retransmission of broadcasting program as before.
|
Rights Granted for Simultaneous Retransmission of Broadcasts
(before and after the amendment in 2006)
|
Wire Diffusion |
IP Multicast Transmission |
| Author |
Exclusive Right |
Exclusive Right |
| Performer |
No Right => Remuneration Right |
Exclusive Right => Remuneration Right |
| Phonogram Producers |
No Right => Remuneration Right |
Exclusive Right => Remuneration Right |
VI. How Are Foreign Works Protected?
--There is no boundary of copyright.--
As works, performances, phonograms and broadcasting programs are
exploited across the boundaries, a number of countries in the world
have been making considerable efforts to protect such contents
internationally by establishing international treaties and agreements.
They include: the "Berne Convention" and the "Universal Copyright
Convention" for the protection of author's right as well as the "Rome
Convention" and the "Phonograms Convention" for the protection of
neighboring rights. Japan has acceded to all of them and protects
works, performances, phonograms and broadcasting programs of other
member countries of the Unions.
Treaties of Author's Right
|
Berne Convention |
Universal Copyright Convention |
| Year of adoption |
1886 |
1952 |
| Number of contracting states |
164 (Japan in 1899) |
100 (Japan in 1956) |
| Full name |
The Berne Convention for the Protection of
Literary and Artistic Works |
The Universal Copyright Convention |
| Characteristics |
national treatment |
national treatment |
| non-formality |
bridge between non-formality regime and formality
regime by © mark |
| retroactivity |
non-retroactivity |
| protected works: those created by a national of a
contracting state or published for the first time in a contracting
state |
protected works: those created by a national of a
contracting state or published for the first time in a contracting
state |
| minimum term of protection: 50 years after
the death of the author |
minimum term of protection: 25 years after
the death of the author |
(as of December 2009)
Treaties of Neighboring Rights
|
Rome Convention |
Phonograms Convention |
| Year of adoption |
1961 |
1971 |
| Number of contracting states |
88 (Japan in 1989) |
77 (Japan in 1978) |
| Full name |
The International Convention for the
Protection of Performers, Producers of Phonograms and Broadcasting
Organizations |
The Convention for the Protection of
Producers of Phonograms Against Unauthorized Duplication of Their
Phonograms |
(as of December 2009)
Also, the international agreement to establish the WTO (World Trade
Organization) was adopted in 1994 and entered into force in 1995. This
agreement incorporates the TRIPS Agreement (the Agreement on
Trade-Related Aspects of Intellectual Property Rights), which
stipulates norms and means for the international protection of
Intellectual Property Rights such as copyright (both Author's right and
neighboring rights), patent, trademark, etc. Japan acceded to this
Agreement in December 1994, and the number of contracting states
amounted to 153 in December 2009.
TRIPS Agreement (the Agreement on Trade-Related Aspects of Intellectual Property Rights)
| 1994 |
153 contracting states (Japan in 1994) |
| Major Provisions : |
| 1) |
compliance with the provisions of the Berne Convention (excluding those on moral rights) |
| 2) |
protection of computer programs and databases |
| 3) |
introduction of the right of rental for computer programs,
cinematographic works and phonograms |
| 4) |
protection of performers, phonogram producers and broadcasters (the
level of the protection is lower than the Rome Convention in a number of
aspects) |
In addition, a new international legal framework was established at
the WIPO to cope with the development of digitization and network, viz.
the adoption of tow new treaties: the WCT (WIPO Copyright Treaty) and
the WPPT (WIPO Performances and Phonograms Treaty). Japan acceded to
the WCT in June 2000 and to the WPPT in July 2002.
WCT (WIPO Copyright Treaty)
| 1996 |
71 contracting states (Japan in 2000) |
| Major provisions : |
|
| 1) |
protection of computer programs |
| 2) |
protection of databases/compilations composed of non-works |
| 3) |
introduction of the right of distributions with international exhaustion |
| 4) |
introduction of the general right of "communication to the public "(covering the act of "making avaiable") |
| 5) |
expansion of the term of protection of photographic work (to 50 years after the death of the author) |
| 6) |
provisions for "technological measures" |
| 7) |
provisions for "right management information" |
WPPT (WIPO Performances and Phonograms Treaty)
| 1996 |
69 contracting states (Japan in 2002) |
| Major provisions |
| 1) |
moral rights of audio performances |
| 2) |
rights of reproduction, broadcasting and communication to the public of live performances |
| 3) |
economic rights of performers and phonogram producers with respect to phonograms |
| 4) |
provisions for "technological measures" |
| 5) |
provisions for "rights management information" |
(as of December 2009)
| (Key Words) |
National Treatment:
The principle that the level of protection for foreign works should be equal to or higher than that for domestic works. |
Non-formality rule:
The principle that copyright is granted automatically without any such
formality as registration. A number of countries now adopt this rule
including Japan. |
Formality rule:
The principle that copyright is granted only upon such formality as
registration, deposit of a copy, indication of the right owner, etc. |
Retroactivity:
The principle that works created before a treaty entered into force in a
country are also to be protected in the country if they are within the term of protection. |
Non-retroactivity:
The principle that works created before a treaty entered into force in a
country are not to be protected in the country. |
© indication:
The indication of the following three items altogether on all copies of a work:
(a) © mark; (b) year of the first publication; and (c) name of the
author.
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Exploitation of foreign works
In exploiting a foreign work, which is covered by a traty, it is first
needed to clarify if it is a work within the term of
protection as there are some exceptions as follows:
1) Reciprocity in term of protection:
If the term of protection in the relevant foreign country is shorter than
that in Japan, the term of protection in Japan is limited to the former.
2) Prolonged term of protection to recover wartime:
Based on the Peace Treaty between Japan and the United Nations member
countries, the term of protection of works of such countries,
which were supposed to be protected during the war, is prolonged for the
period of the wartime. The added term is 3794 days for many works, however,
it should be checked for each work. Also, term of protection of the right of
translation is to be prolonged further for six months.
In addition to the above exceptions, there are some other exceptional
treatments in such points as the right of translation, and therefore,
subsisting rights should be checked and confirmed carefully to exploit a
foreign work.
| Q1. |
Are foreign works also protected in Japan? |
|
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| A1. |
Yes. Japan is a member of the Berne Convention, the Universal
Copyright Convention, the TRIPS Agreement and the WCT. Therefore, works
of other member countries of these treaties (viz. works created by
nationals of such countries and works first published in one of such
countries) are protected in Japan. Also, works created by nationals of
non-member countries of the above treaties are protected in Japan
beyond the obligation under the treaties if they are first published in
Japan. |
| Q2. |
Which countries do not have treaty relations with Japan? Is it OK to exploit works of such countries without authorization? |
|
|
| A2. |
Such countries as Vietnam and Iran have no treaty relation with
Japan, and therefore, works created by nationals of such countries are
not protected in Japan. However, such works are also protected in Japan
if they were first published in Japan or other member countries of the
treaties. Also, due attention should be paid to the member countries of
the TRIPS Agreement. |
| Q3. |
How is the treaty relation between the US and Japan? |
|
|
| A3. |
The only treaty relation between the US and Japan used to be the
Universal Copyright Convention. However, the US finally ratified the
Berne Convention on March 1, 1989, and therefore, Japanese works are
now protected in the US without © mark.
|
| Q4. |
Is a work of a county in which the term of protection is 25 years
protected in Japan up to 50 years after the death of the author? |
|
|
| A4. |
Based on the principle of "national treatment", Japan should ensure
better or equal treatments for works of foreign countries which have
treaty relations with Japan. However, term of protection is an
exception clearly defined in the treaties, and is fixed based on a
reciprocal basis. This means that if term of protection in the country
of origin of the work is shorter (e.g. 25 years) than that in Japan,
its term of protection in Japan is to be shortened down to the length
in the country of origin (i.e. 25 years). |
VII. How Should A Work Be
Used?
--Some points should be checked out.--
As has been explained, copyright is composed of various rights, and
therefore, with a view to exploiting a work, it is, in principle,
needed to
have the authorization of all right owners. However, as there are some
exceptional cases, it should be checked by the following process
whether the authorization is necessary.
Checking process to exploit a work:
Making a contract with the right owner, the detailed nature of the
exploitation of the work should be indicated as clearly as possible,
and it is better to make a written contract to make sure of the
authorized acts, the amount of royalty, the means of payment, other
conditions, etc.
| Q1. |
What should be done to publish a work? |
|
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| A1. |
With a view to exploiting a pre-existing work, the necessity of
authorization first should be checked, and if it is necessary, the
authorization of the author should be obtained, following the
above-mentioned process. This process also applies to the case of
publication. If the publisher would like to have an exclusive license,
he should have an exclusive contract of authorization or, to be on the
safer side, a contract to establish "the right of publication". By the
latter contract, the publisher can enjoy a more stable position as an
exclusive licensee. |
| Q2. |
What are contact points to have information on the exploitation of works and contracts? |
|
|
| A2. |
Copyright in General
Copyright Research and Information Center (CRIC)
Tel: +81-3-5353-6921
Tel: +81-3-5353-6922 (Consultancy Office) |
Musical Works
Japanese Society for Rights of Authors, Composers and Publishers (JASRAC)
Tel: +81-3-3481-2121 |
Novels
Japan Federation for the Protection of Copyright on Literary Works
Tel: +81-3-3265-9658 |
Scenarios
Nihon Kyakuhonka Renmei
Tel: +81-3-3401-2304 |
Nihon Shinario-sakka Kyokai
Tel: +81-3-3584-1901 |
Phonograms
Recording Industry Association of Japan (RIAJ)
Tel: +81-3-6406-0513 |
Performances
Japan Council of Performers' Organizations (GEIDANKYO)
Tel: +81-3-5353-6600 |
Center for Performers' Rights Adminstration (CPRA)
Tel: +81-3-3379-3571 |
Broadcasting
Nihon Hoso Kyokai (NHK)
Tel: +81-3-3465-1111 |
National Association of Commercial Broadcasters in Japan (NAB)
Tel: +81-3-5213-7707 |
Computer Programs
Association of Copyright for Computer Software (ACCS)
Tel: +81-3-5976-5175 |
Video Works
Japan Video Software Association (JVA)
Tel: +81-3-3542-4433 |
Japan International Movie Copyright Association (JIMCA)
Tel: +81-3-3265-1401 |
Publications
Japan Book Publishers Association
Tel: +81-3-3268-1303 |
Reprography
Japan Reprographic Rights Center (JRRC)
Tel: +81-3-3401-2382 |
Artistic Works
Japan Artists' Association
Tel: +81-3-3542-2581 |
Photography
Japan Photographic Copyright Society (JPCA)
Tel: +81-3-3265-6655 |
Educatinal and other Films
Eizou Bunka Seisakusha Renmei (EIBUNREN)
Tel: +81-3-3501-0236 |
|
VIII. In Which Cases Works Can Be
Used Exceptionally Without Authorization?
--Some conditions should be fulfilled.--
The Copyright Law stipulates some exceptional cases in which
copyright is limited and works can be exploited without authorization.
However, even in such cases, strict conditions are provided for so that
such exceptional exploitations without authorization may not
unreasonably prejudice the interests of the author or they may not go
counter to normal exploitation of the work. Also, the limitation of
economic rights does not necessarily mean limitation on moral rights.
Examples of the cases of limitations on author's economic rights
| Reproduction for private use |
| Reproduction
by the user himself/herself for the purpose of his/her own personal
use, family use or other similar uses within a limited circle. |
| Note: |
Compensation should be paid to the relevant right owners in digital sound/visual reproduction for private use.
Reproduction for private use after circumvention of technological measures is not covered by this exception. |
|
| Reproduction in libraries |
Reproduction of a part of library materials for library users at certain libraries designated by the Copyright Law. |
| Quotations |
Reproduction as quotation of a pre-existing work within one's own work, under some conditions. |
| Reproduction in school textbooks |
Reproduction to incorporate in school textbooks authorized by the Government
to the extent deemed necessary for the purpose of school education.
(The user should inform the author of the reproduction and compensation should be paid to the author.)
Enlargement and other ways of reproduction of works already incorporated in school textbooks authorized by the Government for the pupils/students who have difficulties to perceive them by any disability.
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| Broadcasting and wire diffusion in school education programs |
| Broadcasting and wire diffusion in a program complying with the National Curriculum Standard. |
| Note: |
The user should inform the author of the transmission.
Compensation should be paid to the author. |
|
| Reproduction and public transmission for teaching materials at education institutions |
Reproduction
to make educational materials by a teacher or a pupil/student for
his/her own class at non-profit education institutions under some
conditions.
Live transmission of such materials to pupils/students at remote/satellite classrooms. |
| Note: |
The interests of the right owner should not be prejudiced unreasonably. |
|
| Reproduction and public transmission as a part of examination questions |
| Reproduction or public transmission to use as a part of questions of tests, examinations or others to measure knowledge/skills. |
| Note: |
Compensation should be paid to the author in the case of profit-making examination. |
|
| Reproduction and public transmission as Braille; sound recordings for the blind |
Reproduction in Braille as well as public transmission of Braille data.
Production and interactive transmission of sound recordings at Braille libraries and other designated establishments for the purpose of lending to the blind. |
| Public transmission as subtitles for the deaf |
Live transmission of subtitles of broadcasting programs without reproduction through PC networks. |
| Intangible communication to the public for non-profit-making purposes |
Some
cases of communication to the public (e.g. public performance, public
recitation, public display) for non-profit-making purposes under some
conditions. |
| Reproduction, broadcasting and wire diffusion of articles on current topics |
| Reproduction
in the press and broadcasting or wire diffusion of pre-existing
articles on current topics in newspapers or periodicals. |
| Note: |
Excluding the case that such acts are explicitly prohibited. |
|
| Exploitation of political/judicial speeches |
| Exploitation
by any means of political speeches delivered in public and speeches
delivered in the course of judicial proceedings. |
| Note: |
Excluding the case to make a collection of speeches of the same person. |
|
| Reporting of current events |
Exploitation
by any means of a work involved in the event or seen/heard in the
course of the event for the purpose of reporting current events. |
Reproduction for
judicial/administrative/legislative proceedings |
| Reproduction for judicial proceedings, internal use in legislative bodies or internal use in governmental organizations including those for application for industrial property rights and pharmaceutical control. |
| Note: |
The interests of the right owner should not be prejudiced unreasonably. |
|
| Reproduction and other use for administrative information disclosure |
Reproduction
or other exploitations for the proceedings under the Administrative
Information Disclosure Act or corresponding local legislations. |
| Temporary reproduction for broadcasting or wire diffusion |
Reproduction and storage for a limited period of time to produce recorded programs to be broadcast or diffused by wire later. |
| Exhibition of artistic/photographic works by the owner of the originals |
Exhibition of the originals of artistic or photographic works done by their owners. |
| Exploitation of artistic works located in open places |
Exploitation of artistic works permanently located in open places under some conditions. |
| Reproduction in booklets of exhibitions |
Reproduction of artistic or photographic works in pamphlets/booklets of exhibitions to explain/introduce them to spectators. |
| Reproduction/adaptation of a computer program by the owner of a copy |
Reproduction or adaptation of computer programs by the owners of the copies to use them in his/her own PC. |
| Temporary storage for the maintenance or repair of a machine |
Temporary reproduction in a backup storage for the maintenance or repair of a machine with memory devices |
| Q1. |
In which libraries is the exceptional reproduction without authorization permissible? |
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| A1. |
The libraries which can make copies of library materials for the
users, making use of the relevant limitation clauses in the Copyright
Law, are limited to such libraries as public libraries,
university/college libraries and some others designated by the
Government open to the public. |
| Q2. |
Is it permissible by the limitation clauses in the Copyright Law to
reproduce teaching/learning materials published/sold for schools? |
|
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| A2. |
No. The exception for reproduction to make educational materials at
school applies under the condition that the interests of the right
owner are not prejudiced unreasonably in terms of the category of the
work, the nature of the use, the number of copies, the nature of the
act of reproduction, etc. Such publications as workbooks and exercise
books for schools or pupils, which are sold to be bought by each user,
are typical examples to prejudice the interests of right owners. |
| Q3. |
How should a work be quoted properly? How should "indication of sources" be done? |
|
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| A3. |
Quotation as one of the limitations on copyright under the
Copyright Law means to exploit a pre-existing work by e.g.
introducing/copying a part of a pre-existing thesis in one's own new
thesis to strengthen the argument of the latter. It can be done without
authorization of the author under such conditions as: it is done to a
fair extent; the quoted part is subordinate to the work as a whole; the
range of the quoted part is made clear by a pair of quotation marks,
etc. In quoting a pre-existing work, the source should be indicated,
and in more concrete terms, such items as the title and the name of the
author should be clearly shown to a reasonable extent so that the
source may be identified. |
| Q4. |
Is it permissible to make a copy of a rented video after the circumvention of technological measures against reproduction? |
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| A4. |
Some videotapes and DVDs are protected by technological guards
against reproduction so that copying device may not function or copied
data be distorted. Such mechanisms are called "technological measures"
(also called "copy protection", "copy guard", "copy control", etc.).
The limitation for "private use" does not apply to reproduction after
the circumvention of technological measures, and therefore, such an act
of reproduction constitutes infringement. The distribution, lending,
uploading, etc. of circumvention devices or programs also constitute
violations to be punished by penal sanctions. |
| Q5. |
What is "rights management information? |
|
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| A5. |
Rights management information means pieces of information put on
copies of works or transmitted together with a work, which indicate
such items as the name of the right owner, the conditions of
authorization for some uses, etc. It is usually incorporated in images,
music, etc. of digital formats, making use of such technologies as
"water print", and is used to find infringed copies on the Internet
and/or to manage contracts efficiently. Therefore, any addition of
false information, unauthorized change/deletion, etc. would cause
serious problems in the management of right exercise and contract, and
such acts constitute violation to be punished by penal sanctions. |
IX. What Happens to Infringement on Rights?
--Infringement and Remedies--
Exploiting a work without authorization of the right owner
constitutes an infringement on copyright (economic right) except for
the exceptional cases which are explicitly provided for in the
Copyright Law.
Also, such acts as modifying the contents and/or title of a work, indicating
the true name of the author who wants to hide his name, etc. constitute
infringements on copyright (moral rights) , too.
Furthermore, such acts as distributing unauthorized copies knowingly,
possessing such copies knowingly for the purpose of distribution,
modifying rights management information intentionally, etc. are deemed
to constitute infringements.
1)civil remedy
Against infringements on rights as the above, relevant right owners
may make the following legal claims, the implementation of which would
be ensured by the court if necessary:
a) cessation of the act;
b) compensation for the damage;
c) restoration of the profits; and/or
d) recovery of honor.
2)penal sanction
Infringement on copyright constitutes a crime, and therefore, the infringer should be punished by penal sanctions. However, the prosecution takes place only upon the complaint of the right owner.
Contents of the penal sanction vary according to the nature of the infringement, however, they are generally imprisonment for a term up to ten years or a fine up to ten million yen (imprisonment for a term up to five years or a fine up to five million yen in the case of the infringement of moral rights and some other cases).
In the case of infringement (excluding that on moral rights)
committed by a body corporate, the amount of the fine is up to 300
million yen.
Also, the court may sentence both imprisonment and fine at the same time.
| Q1. |
Is it permissible as the exception of "reproduction for private
use" to make a copy of a work for a business purpose, which will be
used only by myself? |
|
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| A1. |
No. Even if the copy will be used only by one person, reproduction
for a business purpose (including non-profit-making business purposes)
is excluded from the "reproduction for private use" in the Copyright
Law. |
| Q2. |
Is it permissible as the exception of "reproduction for private
use" to make a copy of an audio/audio-visual work, making use of an
audio/audio-visual dubbing machine at a shop? |
|
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| A2. |
No. Reproduction by means of automatic reproducing machines placed
for the use by the public is excluded from the "reproduction for
private purpose" and therefore, should not be done without
authorization. |
| Q3. |
Is it permissible to sell a videotape to a video rental shop, in
which an audio-visual work is recorded by the act of "reproduction for
private use"? |
|
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| A3. |
No. Copies of works which have been made by limitations on rights
should be used exclusively for the purposes stipulated in the relevant
provisions in the Copyright Law. Therefore, such videotapes should not
be sold to video rental shops. |
| Q4. |
Does it constitute infringement to rent a counterfeit videotape
knowingly? How about simply possessing such a videotape for rental in
the future? |
|
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| A4. |
Yes. It is deemed to constitute infringement to sell/lend to the
public copies made without authorization of the right owner. Simply
possessing such copies is also deemed as infringement if the purpose is
distribution or lending to the public. These acts are to be punished by
penal sanctions. |
| Q5. |
Is there any difference between author's right and neighboring
rights in terms of the limitation on rights and infringement/remedies?? |
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| A5. |
There is no difference in general except for some minor points. |
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