3. TV Programs Recorded on Video Tape
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| Answer Recording a TV program on video tape corresponds to the act of reproduction under the Copyright Law. A number of people are doing such recording at home, which is permissible as reproduction for private use by Article 30 of the Copyright Law. However, reproduction for business purposes (both profit-making and non-profit-making) is not covered by this exception, and therefore, the act of reproduction carried out by the Welfare Division itself is already an infringement of copyright, not to mention the making of a library and showing them to the public. Then, whose economic right of reproduction is infringed? As to ordinary TV programs, a number of right owners are involved in the making. The TV programs mentioned in the question are probably documentary-style ones on welfare issues, and therefore, such right owners as actors and scenario writers may not be involved in. However, there may have been a number of people, e.g. a professional writer, welfare experts, an interviewer, interviewees, composers of the background music, performers of such music, producers of phonograms of such music, the broadcaster, and so on, who participated in and contributed to the production of the program. The contents involved in the program, in terms of the Copyright Law, are literary works, musical works, performances, phonograms, broadcasting programs, and so on, and all the right owners of such contents hold the economic right of reproduction as a part of the author's rights or neighboring rights of performers, phonogram producers and broadcasters. The act of reproduction of a TV program without authorization infringes the economic rights of all those right owners, and it corresponds to the concept of piracy. Even if it is based on goodwill to contribute to welfare, the public authorities should not infringe people's rights by unlawful actions. Therefore, to make a copy of a TV program for such a public purpose, it will be necessary to obtain the authorization of all the relevant right owners. However, there is so far no one-stop contract point to cover the rights of all such right owners for contract. Also, it is virtually impossible to find all the right owners and obtain the authorization of all of them because of the time and other resources which would be needed. As there could be some TV programs the number of right owners of which is relatively small, it is anyway better to contact the broadcaster. Some TV programs with high demand are published and sold as vide tapes. |
| Contact Point for Further Information |
National Association of Commercial Broadcasters in Japan (NAB) |
| Nihon Hoso Kyoukai (NHK) |
| Relevant Articles of the Copyright Law |
Article 21 on the economic right of reproduction of authors |
| Article 91 on the economic right of reproduction of performers | |
| Article 96 on the economic right of reproduction of phonogram producers | |
| Article 98 on the economic right of reproduction of broadcasters | |
| (xv), Paragraph (1), Article 2 on the definition of reproduction |
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| Answer It seems that, as "educational movie" is mentioned in the question, such a movie has been produced by a movie company rather than the broadcaster. Article 38 of the Copyright Law provides for an exception for mechanical presentation of moving and non-moving images for non-profit-making purposes, and the act of presentation to the public mentioned in the question is also covered by this exception. However, in the case of the above question, the act of recording (reproduction) itself is already an infringement of copyright. As has been explained in Q 3-1, the act of recording a TV program on video tape corresponds to the concept of reproduction. Therefore, recording a TV program without authorization of the relevant right owners constitutes an infringement even if it is done for non-profit-making purposes to show it to PTA members and teachers in the audiovisual room of the school. Just like the case of Q 3-1, this case also is not covered by the exception for reproduction for private use, which is provided for in Article 30 of the Copyright Law. The relevant right owners include, in addition to those mentioned in Q 3-1, the maker (company) of the movie. Actually, as the broadcaster just broadcasts a preexisting movie in this case, the majority of the relevant right owners are those involved in the production of the movie rather than the TV program. (If the broadcaster itself makes a recorded TV program before the broadcasting, the broadcaster obtains the status of the maker of a movie under the Copyright Law, however, it is not mentioned in Q 3-1 in order to avoid complexity.) Article 29 of the Copyright Law provides for that the economic rights in a cinematographic work belong to the maker (movie company) of the movie if the authors (excluding the employees of the maker) of the movie have undertaken to participate in its production. The majority of commercially-made movies belong to this category. However, the maker does not own all the relevant rights of the movies. It only has the economic rights of the movie as a whole, excluding the rights in the works reproduced or adapted within the movie, such as the original story, the scenario, the musical works (the rights of which are collectively managed by JASRAC), and so on. Also, the moral rights are continuously held by the authors of the movie. The broadcaster also has the right of reproduction as a part of its neighboring rights in terms of the program (movie) after it has been broadcast, and there are anyway a lot of right owners in the TV program. Therefore, it seems extremely difficult to obtain authorization from all those right owners. If the movie company is selling video tapes of the movie, it must be much easier to buy one. Video recording of a TV program is quite easy these days, however, such an act which is not covered by the exceptions provided for in the Copyright Law always constitutes an infringement even if it is for non-profit-making purposes for education or academic research. |
| Contact Point for Further Information |
Japan Association of Audiovisual Producers |
| Relevant Articles of the Copyright Law |
Article 38 on the exception for cinematographic presentation for non-profit-making purposes |
| Article 29 on the ownership of economic rights in cinematographic works |
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| Answer It seems that the TV program was made by the Tourism Division, rather than by the broadcaster, and it preexisted in the form of video tape before the broadcasting. This means that the program corresponds to a cinematographic work under the Copyright Law. Namely, all the relevant right owners including the city can not only claim compensation but also sue the infringer if the copies were made without authorization. The relevant right owners of a cinematographic work include the maker of the movie, as the legal system to have the maker obtain the economic rights was explained in Q 3-2, and the maker of a cinematographic work is defined by the Copyright Law as "those who take the initiative in, and the responsibility for, the making of a cinematographic work". As to the case of the question, which says that the Tourism Division made the movie, it might be possible that the movie was made solely by the officials working in the division including the planning of the whole movie, the writing of the scenario, the selection of and negotiation with the actors, the shooting of the scenes, the editing and completion as a movie, and so on. In this case, the city itself has the status of the author of the movie because the officials involved in the making were employed by the city. However, it is virtually impossible for the city officials to make a movie, unless it is an amateur low-quality one, and therefore, it is usually the case that the division just makes a basic plan of the movie, orders a film maker by contract to make it, and pays money for it. In such a case, just hitting upon an idea to make a movie, ordering it and paying money do not correspond to "taking the initiative and the responsibility". This expression in the law seems to correspond to the maker of the movie which creates it based on the contract with the city. Therefore, if the city would like to obtain the economic rights in the movies, it should make a contract, with the movie maker, which stipulates the assignment of such rights. However, as the movie maker is usually reluctant to transfer all rights, it might be a more realistic practice to make a contract which does not transfer the rights but allow the city to carry out a wide range of use including reproduction, distribution, presentation, broadcasting and so on. In this case, the city cannot stop the exploitation done by others. |
| Relevant Articles of the Copyright Law |
Article 63 on authorization of exploitation |
| (x), paragraph (1), Article 2 on the definition of maker of cinematographic works | |
| Article 29 on the ownership of economic rights in cinematographic works |
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| Answer The case mentioned in the question seems to be the video recording of live broadcasting of the Parliament sessions carried out by the officials of the city themselves. If the video tape is made and sold by the broadcaster or other companies authorized by the broadcaster, there is no copyright problem for the city to buy some, distribute them to the city's facilities, and present them to the public. This act is permissible by the exception for presentation for non-profit-making purposes, which is provided for in Article 38 of the Copyright Law. If a cable TV system is used, it is necessary to obtain the authorization of the relevant right owners. However, before discussing the act of presentation to the public, if the video tape is made without authorization, there could be a problem in terms of the economic right of reproduction just like the cases of many other proceeding questions. The contents of the discussions, questions and answers at Parliament sessions are literary works of authorship, and therefore, protected by the Copyright Law. Paragraph (2), Article 40 of the Copyright Law provides for that it is permissible to reproduce in the press, broadcast or diffuse by wire speeches which are delivered in public by organs of the State or local public entities, however, video recording is not covered by this exception. Also, the video recording of a TV program is also related to the economic right of reproduction held by the broadcaster as a part of its neighboring rights. Therefore, video recording of such a program without authorization of the relevant right owners would constitute an infringement of the right of reproduction of such people. In the case of the question, if the video tape was made by someone else, without authorization, and was obtained by the city, the act of public presentation does not constitute an infringement because of the exception provided for in Article 38 of the Copyright Law. It is considered as an infringement to distribute or possess for distribution such a pirated copy, knowing the infringement, by Article 113 of the Copyright Law, however, just presenting the video tape to the public is not covered by this article. Therefore, in such a case, the city would not be accused by the infringement of reproduction right in the legal terms, however, it may be criticized for using such a pirated video tape. |
| Relevant Articles of the Copyright Law |
Article 21 on the economic right of reproduction |
| Article 98 on the economic right of broadcasters | |
| Paragraph (1), Article 38 on the exception for presentation for non-profit-making purposes | |
| Paragraph (2), Article 40 on the exception for the use of political speeches | |
| (ii), paragraph (1), Article 113 on acts considered to be infringements |
4. Making of Video Contents
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| Answer Shooting natural scenery would not cause any copyright problem. On the other hand, as has been explained in terms of other questions, recording such works as paintings and sculptures on video tape corresponds to reproduction under the Copyright Law. Attention should be paid to the fact that the owner of such a work as a painting or a sculpture is not necessarily, or usually is not, the owner of copyright. It should be easy to understand it by thinking of the case to buy a book, the act of which does not mean the acquisition of the copyright of the book. Therefore, even the museum which owns a number of artistic works can never exploit them without authorization of the authors unless it has obtained copyright by contract. To reproduce such a work, it is necessary to look for the author, rather than the museum, by contacting relevant associations and organizations. As to the sculptures in the park, Article 46 of the Copyright Law provides for that it is permissible to exploit artistic works permanently located in such open places accessible to the public such as streets and parks, or at places easily seen by the public such as the outer walls of buildings, excluding some cases such as the making of the same sculpture as the original or small copies for sale. Therefore, it is permissible to shoot the sculptures in the park. On the other hand, the reproduction of musical works in CDs for back ground music calls for the authorization of the relevant right owners. Such relevant right owners include not only the composer of the music but also the performers and the phonogram producer. As to the former, Japan Society for Rights of Authors, Composers and Publishers (JASRAC) takes care of the contract for authorization for the majority of musical works. For the performers and phonogram producers, no such comprehensive collective management system has been established, and therefore, it is better to contact the phonogram producer first, rather than looking for all right owners individually. |
| Contact Point for Further Information |
Japan Artists' Association |
| Japan Society for Rights of Authors, Composers and Publishers (JASRAC) |
| Relevant Articles of the Copyright Law |
Article 21 on the economic right of reproduction of authors |
| Article 91 on the economic right of reproduction of performers | |
| Article 96 on the economic right of reproduction of phonogram producers | |
| Article 46 on the exception for the use of works located in open places |
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| Answer There seems to be a number of points to be discussed in terms of this case. If this video tape corresponds to a cinematographic work which was made in a creative way, paragraph (2), Article 91 of the Copyright Law applies, which provides for that the economic right of performers do not apply to performances which have been incorporated in a cinematographic work with the authorization of the relevant performers. On the other hand, if the video is a simple recording of the stage without any movement of the camera, it is not a cinematographic work and the performers still keep the reproduction right. Therefore, if the video tape can be considered as a copyrighted work of authorship, it will not be needed to obtain the authorization of the performers again to reproduce and sell the original video. However, there could be a doubt in terms of the legal meaning of "with the authorization of all performers" in the question. If the authorization was given just verbally and the further exploitation of the video by reproducing and selling to the public was not anticipated or explained at the concert, there could be a legal problem with the performers. This way, the above case in the question may cause a lot of legal controversies and disputes, and therefore, it would be better to obtain the authorization of the performers again for the future use. Also, apart from the performers, the right of composers should not be forgotten. Although classical music the term of protection of which has already expired can be used freely, the use of contemporary music calls for the authorization of the author. This authorization should have been obtained for the concert through JASRAC, and if the first authorization was just for the public performance at the concert, the shooting of the video itself was already an infringement of the author's right of the composers. It is of course needed to obtain the authorization for further use, and therefore, it is anyway necessary to contact JASRAC for contract. However, it is sometimes the case that JASRAC cannot take care of the contract in terms of some foreign musical works. |
| Contact Point for Further Information |
Japan Society for Rights of Authors, Composers and Publishers (JASRAC) |
| Japan Council of Performers' Organizations (GEIDANKYO) |
| Relevant Articles of the Copyright Law |
Article 21 on the economic right of reproduction of authors |
| Article 91 on the economic right of reproduction of performers |
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| Answer It is permissible to reproduce, without authorization, a musical work as background music in a home-made video to be used and enjoyed within a household, based on the exception provided for in Article 30 of the Copyright Law. However, when the video tape is submitted to the City Office for the contest, the purpose of the reproduction exceeds the range of private use, and it constitutes copyright infringement. Also, if the video tape was made for the contest from the beginning, rather than for private use, the inclusion (reproduction) of background music needed the authorization of the right owner because it was not for private use. In the case mentioned in the question, as it is not the City Office that made the unlawful copy of music, the City may not be accused for the infringement. However, considering the possibility that such a video tape with infringed music is selected to be awarded, there should be some efforts made by the City Office. For example, it is often indicated in the explanation for the applicant that preexisting works should not be used or that the applicant should take all responsibility for copyright contracts for authorization, and this is an example of such efforts. However, in the case of the latter, it may be appropriate to let the applicants know how to make such contracts. As to the above case of the inclusion (reproduction) of music in TV or radio programs, the relevant right owners, from whom the authorization should be obtained, are the composer (author) of the music, the performers who sang or played instruments, the phonogram producer if the music came from a CD, and the broadcaster. Among them, as to the contract with the composer, the collective management system of JASRAC was explained in Q4-2. For other right owners, authorization contracts should be made individually with each right owner, however, it is not always easy, and moreover, it is sometimes impossible to obtain authorization for overseas music and CDs. To sum up, as long as a contest for amateurs is concerned, it should be better to set a condition that no preexisting work of others should be used. |
| Relevant Articles of the Copyright Law |
Article 49 on uses of copies made by exceptional provisions for other purposes |
| Paragraph (1), Article 30 on the exception for reproduction for private use |