1. Public Information Brochures
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| Answer Pictures and explanations in an illustrated book are protected by the Copyright Law as photographic works and literary works. Therefore, copying these works without authorization constitutes an infringement of the exclusive economic right of reproduction of the authors. Also, copying just a part of a picture or an explanation constitutes an infringement of the exclusive moral right to keep the integrity of a work of the author. Some people think that copying just a part (element) of an illustrated book, rather than the whole book, is permissible as a "quotation" by the Copyright Law. However, the quotation (quoting reproduction) which is permissible under Paragraph (1), Article 32 of the Copyright Law should be "compatible with fair practice and the extent does not exceed that justified by purposes such as news reporting, criticism or research." For example, it is permissible to copy as a quotation a picture or an explanation in order to criticize it, however, there should be a clear distinction between the quoted part and other parts and also an obvious relation between the major part and the quoted subordinate part. Therefore, just copying a preexisting picture and an explanation from an illustrated book is not permissible under the Copyright Law, excluding the case that the part of the brochure is to criticize the picture and explanation. Article 42 of the Copyright Law provides for another exception that it is permissible to reproduce a work if and to the extent deemed necessary for the purpose of internal use by administrative organs, provided that such reproduction does not unreasonably prejudice the interests of the copyright owner in the light of the nature and the purpose of the work as well as the number of copies and the form of reproduction. However, as the City Office's information brochure is to be distributed to the people and not for "internal use", this exception does not apply to this case. Therefore, in such a case it is necessary to contact the relevant authors (not the publisher) to obtain the authorization. In the case of an illustrated book, attention should be paid to the relation between the authors and the publisher. In principle, the author of a work is the person who actually created it, and therefore, the publisher is not granted any copyright at all. However, it is also possible that some pictures or explanations were created by the employees of the publisher, and in this case, the author of such works (works made by an employee in the course of his duties) is the employer, i.e. the publisher. Also, it is possible that the publisher has bought the copyright (economic rights) from the authors, obtaining the status of the copyright owner. Therefore, it is better anyway to contact the publisher in order to have the information on who are the relevant authors. |
| Contact Point for Further Information |
Copyright Research & Information Center (CRIC) |
| Each publisher |
| Relevant Articles of the Copyright Law |
(viii), Paragraph (1), Article 10 on photographic works |
| (i), Paragraph (1), Article 10 on literary works | |
| Article 20 on the moral right of preserving the integrity | |
| Article 21 on the economic right of reproduction | |
| Paragraph (1), Article 32 on the exception for reproduction as quotations | |
| Article 42 on the exception for reproduction for internal use by administrative organs | |
| Article 15 on works made by an employee in the course of his duties |
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| Answer First of all it is needed to identify the owner of the exclusive economic right of reproduction in terms of the picture. Is it the city, which asked the photographer to take the picture, or the photographer himself? As the author of a work is the person who actually created the work, it is the photographer who is the author of the picture, having all rights included in copyright. Asking the creation of a work or paying money for it does not mean the acquisition of the status of author or right owner at all. While the moral rights cannot be assigned by contract, economic rights are transferable, and therefore, if the city authorities would like to have the economic rights of the picture, it is needed to settle a contract with the photographer in terms of the assignment of the economic rights. It would be better to make a written contract, however, a verbal contact may work. Also, it may be possible that, even if there is no contract, the Court says that it should be deemed that the assignment of the economic rights to the city took place, considering such facts as the fee was much higher than ordinary cases; the photographer gave all the negative films to the city and let it freely make use of them; and so on. If the economic rights have been assigned to the city, it can stop the act of reproduction of the picture by the hotel. If the hotel already reproduced the picture in its pamphlets, the city can request the destruction of them. Also, if the reproduction was carried out intentionally or involuntarily by the advertising agency or the hotel itself, compensation for damages can be claimed. If the economic rights still remain in the photographer, the city cannot take any legal action to stop the act of reproduction by the hotel. In this case, the city is just a user of the picture, who was authorized the exploitation by the photographer, and therefore, cannot prevent any act by other third party users. If the city would like to stop the reproduction by the hotel without having copyright, it should let the photographer know the unauthorized exploitation by the hotel, so that the photographer himself may stop the reproduction as the author. However, if the photographer has authorized the reproduction by the hotel, the city cannot stop it by any means. If the city and the photographer made a contract which stipulated that the photographer should have the approval of the city, when authorizing any use of the picture to others, the city may claim compensation for damages to the photographer, for a breach of contract, however, if not the city could not do anything at all. |
| Contact Point for Further Information |
Japan Photographic Copyright Association (JPCA) |
| Relevant Articles of the Copyright Law |
(viii), paragraph (1), Article 10 on photographic works |
| (ii), paragraph (1), Article 2 on the definition of author | |
| Article 61 on the assignment of economic rights | |
| Article 21 on the economic right of reproduction | |
| Article 112 on cessation | |
| Paragraph (2), Article 112 on abandonment | |
| Article 114 and Article 114bis - Article 114quater on damages | |
| Article 709 of the Civil Code on unlawful actions | |
| Article 415 of the Civil Code on breach of contract |
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| Answer Article 39 of the Copyright Law provides for that it is permissible to reproduce in the press, broadcast or diffuse by wire articles published in newspapers or periodicals on current political, economic or social topics, not having a scientific character, provided that such reproduction, broadcasting or wire diffusion thereof is not expressly prohibited. "Articles on topics" here include columns and editorials in newspapers. Attentions should be paid to the fact that newspaper companies are asserting that "by-line" means the indication of the prohibition. Also, this exception does not cover the ordinary articles which do not deal with "current political, economic or social topics". By the above exception provided for in the Copyright Law, it is permissible to make use of newspaper articles on current political, economic or social topics by reproduction, broadcasting and wire diffusion, if there is no indication of prohibition, considering the public nature of such articles and the needs for information among the general public. There could be a problem of interpretation on whether an information brochure of the local authorities corresponds to "the press". However, considering the purposes and the public nature of such a brochure in terms of the wide provision of information to the people, it seems to fall under "the press" in the above Article, though if the brochure is just for such a purpose as tourist information, it may not correspond to "the press". Also, the indication of the source is obligatory for the use of the above exception. |
| Contact Point for Further Information |
Japan Newspaper Publishers & Editors Association (NSK) |
| Relevant Articles of the Copyright Law |
Article 21 on the economic right of reproduction |
| Article 39 on the exception for the use of articles on current topics | |
| Article 48 on the indication of the source |
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| Answer Although there is no specific legislation, all people are granted, by case laws, the right to control the use of their portraits as a kind of moral right (a part of the right to privacy). In more concrete terms, this right is to authorize or prohibit the act of photographing one's portrait and of disclosing the picture to the public. However, there is also a limitation to this right for such cases as reporting current topics which is deeply related to the public interests. As to the case of the question, the answer depends on what kind of picture was put in the city's brochure. However, it is obvious that the poet had agreed to participate in the unveiling ceremony of the monument, which would be open to the public, and it must have been easy for him to anticipate that some pictures would be taken in such a ceremony. Also, if the taking of the pictures was apparent to the participants and the poet did not explicitly refuse to photographed, it was normal to presume that he agreed to the photographing. Therefore, in such a situation it does not seem to have been necessary, in legal terms, to request the authorization of the poet again for putting his picture in the city's brochure, together with the article to report the unveiling ceremony of the monument, considering the purpose and nature of the use from the viewpoint of the public and social aspects. However, the poet implicitly approved the photographing only in relation to the unveiling ceremony of the monument, and therefore, it could constitute an infringement of the right to portrait to make use of the picture, without his authorization, for other purposes such as putting the picture in an advertising pamphlet for tourists. The case of this question is related to the right to portrait (a kind of moral right) because the relevant stakeholder is a poet, however, it would be a problem of the right to publicity (a kind of economic right) if the stakeholder was a famous singer, actor or athlete. The names and portraits of such well-known people have the power to attract people's attention, and therefore, they have some economic value to be protected. These people are granted the economic right to control the use of their names and portraits also by case laws. |
| Contact Point for Further Information |
Japan Publicity Rights Protection Organization (JAPRPO) |
| Relevant Legal Background |
case laws on the right to portrait (moral right) |
| case laws on the right to publicity (economic right) |
2. Reproduction by Copying Machines
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| Answer Although a number of people are using copying machines everyday without thinking of copyright, the act of copying corresponds to the most basic way of exploitation of a work, i.e. reproduction covered by copyright. The English term, "copyright" clearly shows that the act of copying is in the center of the author's right. Taking copies in the course of business almost always calls for the authorization of the author and otherwise it would constitute an infringement. There are also some cases in which copyright is limited as exceptions and they include, for example, reproduction for private use. There also is an exception for reproduction for internal use by administrative organs, by which copies can be taken without authorization for such a purpose to the extent deemed necessary and under the condition that such reproduction does not unreasonably prejudice the interests of the copyright owner. However, this exception applies only to the cases in which such reproduction has the direct necessity to carry out the business of the public authorities, and the act of reproduction to simply make reference materials is not covered by it. Therefore, copying preexisting works for training programs, the act of which is not directly related to the business of the public authorities, calls for the authorization of the relevant right owners. However, if the training program is planned and carried out by a training center which falls under the category of non-profit-making non-formal educational institution and the copies are taken by a person who is in charge of teaching in it, this act can be covered by another exception for reproduction in educational institutions. For the acts of reproduction of newspapers, journals, books and so on by copying machines, which are not covered by any exception in the Copyright Law, the authorization of the author is always needed. However, it is extremely difficult for the user to identify all right owners, to contact them and to obtain the authorization from all of them. Also, for the right owners it is extremely difficult to find and control all such acts carried out in great many places. Therefore, a lot of unlawful copies are taken everyday. To cope with this problem, an organization for the collective exercise of the right of reprographic reproduction has been established in a number of countries. Also in Japan, there a number of such collective organizations, some of which are registered by the government based on the Law for Collective Management of Copyright, and the Japan Reprographic Rights Center (JRRC) is an example of such organizations, which is for reprographic rights. The JRRC is carrying out the business of collective contract of authorization for a small number of copies of a small number of pages in principle. Therefore, if the act of reproduction of the above question corresponds to this category, the JRRC can arrange the contract for authorization. |
| Contact Point for Further Information |
Japan Reprographic Rights Center (JRRC) |
| Relevant Articles of the Copyright Law |
Article 21 on the economic right of reproduction |
| (xv), Paragraph (1), Article 2 on the definition of reproduction | |
| Article 35 on the exception for reproduction to make teaching materials | |
| Article 42 on the exception for reproduction for internal use by administrative organs |
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| Answer Local public libraries established by prefectures and municipalities are covered by the exception provision of Article 31 of the Copyright Law. Based on this provision, it is permissible for such libraries to reproduce a work included in library materials such as books where, at the request of a user and for the purpose of his investigation or research, he is furnished with a single copy of a part or a work already made public. Also, for a work included in a periodical already published for a considerable period of time, it is permissible to reproduce not only a part of it but also all of it. The libraries to which this exceptional provision applies are provided for and listed in Article 1ter of the Cabinet Order to Implement the Copyright Law. This exception was established, considering the public functions of libraries as the major source of information for the users, however, as it is to limit the important right of authors, this exception should be used strictly within the framework of the conditions provided for in the Copyright Law. The above-mentioned exceptional provision applies only to the act of reproduction, and therefore, the facsimile transmission service, which is related not only to the right of reproduction but also to another economic right of pubic transmission, is not covered by this provision. Although each act of transmission by the facsimile service is of the point-to-point nature, as it is done for anyone (non-specific person) who requested the transmission, the act constitutes transmission to "the public" (non-specific person(s) or a large number of specific people) covered by the economic right of public transmission. Article 31 of the Copyright Law does not limit the economic right of public transmission, and therefore, the facsimile transmission service calls for the authorization of relevant authors in terms of the right of public transmission. This means that the libraries providing copying services should refrain from transmitting library materials to the users unless they have obtained the authorization. To cope with this issue, the organization of public libraries and such collective organizations as the Japan Reprographic Rights Center should discuss and develop an efficient contract system in the future. |
| Contact Point for Further Information |
Japan Reprographic Rights Center (JRRC) |
| Relevant Articles of the Copyright Law |
Article 31 on the exception for libraries |
| Article 1ter of the Cabinet Order to Implement the Copyright Law on the exception for libraries | |
| Article 21 on the economic right of public transmission | |
| (vii)bis, Paragraph (1), Article 2 on the definition of public transmission |
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| Answer For the visually and auditory disabled, it is often needed to perceive a work to carry out such acts as reproduction into Braille and the addition of subtitles, however, all these acts, which correspond to reproduction and/or adaptation, are covered by copyright. Therefore, there had been a number of exceptional provisions in the Copyright Law to limit copyright so that some of such acts may be done without authorization of relevant right owners. However, there were complaints from the users' side that the rage of the exception and limitation was to narrow, impeding the access of the disabled to information. Therefore, the Copyright Law was amended in 2009 to meet these needs, which will be explained below, however, the detailed rules and regulations are provided for in the relevant governmental ordinances. Therefore, for further details please contact the Copyright Division of JCO (Japan Copyright Office) of the Agency for Cultural Affairs. Firstly, as to visual disability, the scope of the disabled covered by the exception before the amendment, which was "the visually disabled", was expanded to "those who have disabilities in perceiving visual expressions". This means that the new scope also covers such people as those with developmental disorders and color-perception difficulties. Also, the scope of the ways of use which do not call for authorization was expanded to "any way of reproduction and interactive transmission to the public" necessary for the use by those who have disabilities in perceiving visual expressions. Therefore, the new scope also covers such use as the production of enlarged books and book recordings called DAISY (Digital Accessible Information System) for the visually disabled. Secondly, as to auditory disability, the scope of the disabled covered by the exception was expanded to "those who have disabilities in perceiving auditory expressions". Also, the scope of the works to be used without authorization was expanded to all kinds of auditorily expressed works (which are already disclosed), and therefore, not only broadcasting programs but also cinematographic works are now included. This means that not only changing (reproducing) auditory expressions into written texts and transmitting them but also adding subtitles to cinematographic works and lending them to the public are newly covered by the limitation. Thirdly, the facilities which may lend sound recordings to the visually disabled and reproductions to the auditory disabled were also expanded to include public libraries and libraries in higher education institutions. |
| Contact Point for Further Information |
Copyright Division of the Japan Copyright Office (JCO), Japanese Government |
| Relevant Articles of the Copyright Law |
Article 21 on the economic right of reproduction |
| Article 27 on the economic right of adaptation | |
| Article 37 on reproduction and public transmission as a part of examination questions | |
| Article 37bis on reproduction and public transmission as Braille; sound recordings for the blind |
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| Answer There is no exception provision in the Copyright Law in terms of the act of reproduction for non-profit-making purposes or that carried out by an organization of the public nature. The exception for reproduction for private use does not apply to the case of chorus group, either. Therefore, the act of reproduction in the question constitutes an infringement of the economic right of reproduction. It is argued that the poorest victims of the rapid development of copying technologies are music books and special/academic books. Old pieces of music the terms of protection (50 years after the death of the author) of which have already expired, such as classical music, can be copied freely. However, attention should be paid to such cases as music with the additional term of protection granted for the wartime, newly arranged pieces of music, and newly added or translated lyrics. For musical works, a collective society called JASRAC (Japan Society for Rights of Authors, Composers and Publishers) has been established, and the authorization can be obtained from this organization in terms of the majority of musical works. However, the act of reproduction of published musical books may not be authorized easily because of the gravity of the effect to the market. It is anyway better to contact JASRAC. |
| Contact Point for Further Information |
Japan Society for Rights of Authors, Composers and Publishers (JASRAC) |
| Relevant Articles of the Copyright Law |
Article 21 on the economic right of reproduction |
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| Answer Some teaching materials may not be works of authorship. However, most of them seem to correspond to copyrighted works of authorship. Therefore, it would be an infringement of copyright if a teaching material is copied without authorization of the owner of the economic rights, and the right owner can claim the cessation of the infringement as well as the compensation for the damages. A problem in the case of the question is on who is the right owner. The moral and economic rights are automatically granted to the author, viz. the person who actually created the work, therefore, the author should be, in principle, a person. However, the Copyright Law provides for an exceptional case in which the employer obtains the authorship under some conditions. The conditions are the following. (a) The work was created by the initiative of the employer. (b) The work was created by an employee as his duty. (c) The work has been or would be disclosed under the name of the employer. (d) There is no relevant stipulation in the contract of employment. The case of the question is not clear in relation to the above conditions. If the material was made by the initiative of the school as a duty of the teacher, it may be possible that the school has the authorship. However, it seems that teachers make teaching materials by their own initiatives rather than being ordered by the principal, and therefore, the author of the majority of such materials seems to be the teacher who actually created them. If the teacher is the author of the teaching material, it is the teacher who can claim cessation to the infringer rather than the school. However, if the economic rights of the materials have been transferred to the school, it is the school that can claim the cessation. It is, of course, also always possible to ask the other school to stop the infringement instead of taking official legal actions. |
| Relevant Articles of the Copyright Law |
Article 21 on the economic right of reproduction |
| Article 112 on cessation | |
| Article 15 on works made by an employee in the course of his duties | |
| Article 17 on the rights of authors |
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| Answer There is the provision in Article 35 of the Copyright Law which stipulates an exception for the use of preexisting works as teaching materials. However the application of this provision should be done carefully and strictly under the conditions provided for in the above article because it is to limit the right of authors. One of the conditions in the above article is that preexisting materials can be copied to make teaching materials without authorization only in "a school or other educational institutions (except those established for profit-making)". Therefore, such educational institutions as local public elementary, lower-secondary and upper-secondary schools, universities and colleges, colleges of technology, and local public non-formal educational institutions are included. However, private institutions for profit-making are excluded from the scope of the application of this exception. Another condition is that the act of reproduction to make teaching materials should be carried out by "a person in charge of teaching and those who are taught" in such educational institutions. Therefore, such people as the staff members of the school office or the officials in the local educational authorities cannot make copies, without authorization, to distribute to schools, teachers or students. Also, the copies should be made as teaching materials "for the purpose of use in the course of lessons". Therefore, the copies should not be used for other teachers' lessons or distributed to the students not for lessons but just for reference materials. In addition, the copies should be made "if and to the extent deemed necessary" in terms, for example, of the number of copies. Even if all the above conditions are fulfilled the above article also provides for that the copies can be made "provided that such reproduction does not unreasonably prejudice the interests of the copyright owner". For the case of a drill book in the question, such a book is published and sold, expecting to be bought by each student. If the teacher buys only one copy, reproducing and distributing the copies to the students, it will seriously damage the business of the publisher. Therefore, such reproduction mentioned in the question is a typical case which the above last condition intends to exclude. Even if the teacher has good will to contribute to the students, he/she should not infringe copyright just to help the students economically, and the authorization should be obtained beforehand. The authorization to copy a drill book cannot be obtained by a contract with the Japan Reprographic Rights Center (JRRC) because the center is not carrying out the collective management of the economic right of reproduction in terms of such books for education as drill books. Therefore, the teacher should make a contract each time he/she makes copies through the negotiation with all the relevant authors. It might be easier to make an original drill of the teacher. |
| Contact Point for Further Information |
Japan Reprographic Rights Center (JRRC) |
| Relevant Articles of the Copyright Law |
Article 35 on the exception for reproduction to make teaching materials |
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| Answer The exception to make teaching materials in education institutions, which is provided for in Article 35 of the Copyright Law is explained in Q 2-5. First of all, the act of copying the painting as a teaching material should be discussed. Such copies should be made "if and to the extent deemed necessary for the purpose of use in the course of lessons". Therefore, the copies should not be made for appreciation or as just a reference material because such copies are not really necessary for the lesson. Also, it seems doubtful whether the making and distribution of such copies is really necessary for an art lesson. For example, the necessity to copy the painting as a whole for all students is suspicious. Therefore, it should be carefully considered whether such an act really complies with the conditions provided for in Article 35. Supposing that such copies were made lawfully, it should be discussed then whether any copies can be used for other purposes such as the case mentioned in the question. The local education authorities often organize seminars for teachers in which a series of presentations are made by teachers on their teaching methods. In such seminars, the presenters often distribute their own teaching materials used in their classes to explain their teaching methods. However, such seminars are not "lessons" in educational institutions, and therefore, not covered by the above-mentioned exception. Distributing the copies in such a seminar would constitute an infringement of copyright. To distribute the copies, the teacher should either obtain the authorization of the author, or use another exception of quotation by writing his/her own report as the major work and by incorporating the copied teaching materials in it to be explained and/or criticized. |
| Contact Point for Further Information |
Japan Artists' Association |
| Relevant Articles of the Copyright Law |
Article 35 on the exception for reproduction to make teaching materials |
| Article 32 on the exception for quotations |