5. The Internet and Web Pages
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| Answer A poem corresponds to a literary work protected by copyright. In the case of paintings on the wall, some may not correspond to works of authorship, but those with sufficient creativity correspond to artistic works. It should also be noted that the owner of copyright may not be the owner (the city) of the building. Unless the copyright has been assigned by a contract to the city, all the rights are owned by the author. The term of protection of works starts, in principle, with the creation of the work and continues to subsist until the end of a period of 50 years following the death of the author. Therefore, the works the terms of protection of which have already expired, including poems and paintings, can be used freely. In the case of the works created by Japanese authors, those works created by the authors who passed away before WWII are not protected by copyright any more. However, as to the works created by foreign authors, there are some exceptional cases in terms of the treaty relations, including the additional term of protection for wartime. If the poems and the painting mentioned in the question fulfill all the above conditions to be protected, viz. they have creativity; and the terms of protection have not expired yet, they are works of authorship protected by copyright. In such a case, there could be some copyright problems as discussed below. The act of uploading a work, such as a poem and a painting in a web page is covered by the economic rights of reproduction and public transmission of the author. Uploading usually means to store the work within the server, and this act corresponds to reproduction. Also, the act of transmitting the work from the server to the members of the public upon access is called in the Copyright Law "automatic public transmission", which is a type of public transmission. However, the poem and the painting on the wall mentioned in the question may differ from each other because the latter corresponds to the case that "the originals of artistic works are permanently located in open places, such as streets, and parks or at places easily seen by the public, such as the outer walls of buildings". In this case, based on Article 46 of the Copyright Law, such a work can be used in any way excluding some cases such as reproduction for commercial purposes. The uploading in a web page (reproduction and public transmission) is also covered by this exception, and therefore, permissible under the Copyright Law. To sum up, uploading a poem protected by copyright calls for the authorization of the author, but uploading a picture on the outer wall of the building can be used freely. |
| Contact Point for Further Information |
Copyright Research and Information Center (CRIC) |
| Relevant Articles of the Copyright Law |
(i), paragraph (1), Article 2 on creativity of expression |
| (i), paragraph (1), Article 10 on the examples of literary works | |
| (iv), paragraph (1), Article 10 on the examples of artistic works | |
| Article 21 on the economic right of reproduction | |
| Paragraph (1), Article 23 on the economic right of public transmission | |
| Article 46 on the exception for the use of works located in open places |
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| Answer What should be discussed first is the nature and meaning of the act of making a database of the covers, the tables of contents and the digests of articles of the magazines. Firstly, the cover of a magazine is usually incorporates some pictures and illustrations, and they are arranged in a creative manner together with the titles of articles. Therefore, the majority of magazine covers seem to be protected either as photographic works or artistic works. Secondly, as to the table of contents of a magazine, simple ones do not seem to have creativity, and therefore not protected by copyright, however, those made in a creative manner in terms of the expression, arrangement or selection are protected. Therefore, it must be safer to consider that all tables of contents are protected by the Copyright Law. Thirdly, the act of digesting the articles in a magazine corresponds to adaptation under the Copyright Law because it is to summarize the articles so that the reader of the digest may understand what is written in the articles without reading them. Fourthly, the act of making a database which includes above contents is covered by the economic right of reproduction and/or another right of adaptation. Also, the act of uploading them is covered by the economic right of public transmission. Therefore, such acts call for the authorization of all the relevant authors except for the cases which are permissible under the Copyright Law. Some people may think that public libraries established for the public interests should be treated differently with some privileges. There are a series of exceptions provided for in the Copyright Law, however, the above-mentioned acts are not included in such exceptions. The exceptions for libraries under the Copyright Law are the following. Article 31 of the Copyright Law It shall be permissible to reproduce a work included in library materials ("library materials" in this Article means books, documents and other materials held in the collection of libraries, etc.) within the scope of the non-profit-making activities of libraries, etc. ("libraries, etc." in this Article means libraries and other establishments, designated by Cabinet Order, having the purpose, among others, to offer library materials for the use by the public) in any of the following cases:
The above exceptions are solely for the act of reproduction and there is no exception for public transmission. Therefore, it is necessary for the library to obtain the authorization of the relevant authors to digest the articles in magazines, to reproduce the digests, the covers and the tables of contents as a database, to reproduce them in the web page, and to transmit them through the Internet. |
| Contact Point for Further Information |
Japan Magazine Publishers Association (JMPA) |
| Each magazine publisher |
| Relevant Articles of the Copyright Law |
(vi), paragraph (1), Article 10 on the examples of artistic works |
| (viii), paragraph (1), Article 10 on photographic works | |
| Article 12 on compilations | |
| Article 21 on the economic right of reproduction | |
| Article 27 on the economic right of adaptation | |
| Article 23 on the economic right of public transmission | |
| Article 31 on the exception for libraries |
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| Answer The city plan is protected as a figurative work under the Copyright Law, however, the point is who is the author. If the plan was drawn by the officials of the city as "a work made by an employee in the course of his duties" under the Copyright Law, the city is the author, holding all the moral and economic rights. However, if the making of the plan was ordered to an outside expert or organization, the creator is the author. Therefore, if the city would like to have the economic rights, a contract of the assignment of the economic rights should be made between the city and the creator. As there must be a number of plans and works created through the process, it seems better to make a comprehensive contract from the beginning, which stipulates, for example, "All the economic rights under the Copyright Law all the works created through the process, including those provided for in Article 27 and 28, shall be transferred to the city." By making such a contract, the economic rights can be considered to be owned by the city. As to the proceedings of the city assembly sessions, paragraph (2), Article 40 of the Copyright Law provides for, "It shall be permissible to reproduce in the press, broadcast or diffuse by wire or retransmit simultaneously through broadcast by input-type interactive transmission speeches, which are delivered in public by organs or the State or local public entities to the extent justified by the informatory purpose," however, public transmission through the Internet (interactive transmission) is not included in this exception. Therefore, to obtain the authorization, the author of the proceedings should be identified. If the proceedings are composed of detailed records made through shorthand or sound recording, viz. the contents can be considered as the reproduction of what have been said in the assembly sessions, all the members, the chair and other speakers are co-authors of the whole work. Some people may argue that the part spoken by the members and city officials are "works made by an employee in the course of his duties" and therefore, the city has the authorship. Also, it is possible to argue that the members agreed to transfer the economic rights to the city by participating in the sessions, the proceedings of which were supposed to be open to the public by all means, except for the cases of closed-door sessions. If the proceedings are summaries of what were actually spoken, the creator of such proceedings is the author of the adapted (derivative) work. In such a case, the proceedings seem to correspond to "works made by an employee in the course of his duties," too, and the economic rights anyway belong to the city. As has been mentioned, the act of uploading a work in a web page is covered by the right of reproduction and the right of public transmission, but in the case of the said city plan and the proceeding, there seems to be no copyright problem. |
| Relevant Articles of the Copyright Law |
(ii), paragraph (1), Article 2 on the definition of author |
| (vi), paragraph (1), Article 10 on the examples of figurative works | |
| (xii), paragraph (1), Article 2 on the definition of joint work | |
| Article 15 on works made by an employee in the course of his duties | |
| Article 21 on the economic right of reproduction | |
| Article 23 on the economic right of public transmission | |
| Article 27 on the economic right of adaptation | |
| Paragraph (2), Article 40 on the exception for the use of political speeches |
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| Answer Local folk songs are usually quite old and nobody knows the author(s). Also, the terms of protection of such old works have usually expired even if the authors are known. However, it is sometimes the case that, although the tones are old, the lyrics were made or added recently by a poet, or the tones were rearranged by a contemporary composer. In such cases it is possible that such a song is still protected by copyright. Otherwise, old folk songs are not protected by the Copyright Law, and therefore, they can be used in any way including copying, uploading and transmitting through the Internet. However, the exploitation of performances and phonograms (sound recordings) should be discussed separately. It is now possible to distribute folk songs not only as a printed score but also as actual sounds performed and recorded. In such a case, apart from the rights of the authors of the music, who created the tones and lyrics, the rights of performers and phonogram producers should be considered. The act of uploading a (live or recorded) performance of a folk song is covered by the right of reproduction (including fixation) and/or the right of making transmittable (available) of the performer (singer/player). Also, the act of uploading a performance already fixed in a CD is covered, in addition to the above rights of the performer, by the right of reproduction and the right of making transmittable(available) of the phonogram producer who recorded the performance (song). Also, if the souse of the performance of the folk song was broadcast, the act of transmitting it from the server upon access is covered by either the right of making transmittable, when the program is continuously inputted into the server without storage, or the right of reproduction, when the program is stored (reproduced) within the server, of the broadcaster. In such cases as the above the terms of protection of the performance, the phonogram and the broadcasting program do not seem to have expired. Therefore, to transmit the performance of the folk song from the web page through the Internet, although the copyright of the relevant works (tones and lyrics) seem to have ceased to exist, it is necessary to obtain the authorization of other owners of neighboring rights, i.e. the performer, the phonogram producer, and/or the broadcaster. |
| Relevant Articles of the Copyright Law |
Article 91 on the economic right of reproduction of performers |
| Article 92bis on the economic right of making transmittable of performers | |
| Article 96 on the economic right of reproduction of phonogram producers | |
| Article 96bis on the economic right of making available of phonogram producers | |
| Article 98 on the economic right of reproduction of broadcasters | |
| Article 99bis on the economic right of making transmittable of broadcasters |
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| Answer The Internet auction, by which ordinary people can participate in auctions of various commodities, is rapidly developing, probably because anyone can participate in it both as a seller or a buyer and the style of auction attracts more people. Some local governments have reportedly gained much more money than expected by selling seized goods through the Internet auction. In such auctions on the Internet, the possible buyers, who do not see the seller or the commodity directly, cannot see or examine the offered commodity. Also, in not a few cases the guarantee of the authenticity and quality of the commodity is not sufficient. Therefore, it is usual the case that the pictures and images of the commodities are uploaded so that possible buyers may examine the quality. This is crucial especially in the case of auctions of artistic works such as paintings and sculptures as well as photographic works in order not only to make sure of the state of the works but also to identify them. However, uploading the images of copyrighted works such as artistic and photographic works without authorization of right owners constitute infringement of the rights of reproduction and public transmission. Also, in the cases where the right owner authorizes the uploading (reproduction and public transmission) on the one hand, it is desirable to upload a high-quality image for the Internet auction so that buyers may better see the commodities, however, on the other hand, such an authorization brings about a situation that the uploaded image itself is used for appreciation by a lot of Internet users, heavily damaging the interests of the right owner. To cope with such a dilemma, realizing a balance between the necessity to examine commodities and the necessity to avoid excessive damage to right owners, the Copyright Law was amended in 2009. By this amendment, it is now permissible without authorization to upload the images of such works as artistic and photographic works, in offering them in the Internet auction, under the conditions in terms of such aspects as quality and size provided for in the relevant governmental ordinances. This new exception applies to not only Internet auctions but also to the display in catalogue and other publications for the sale of such works. |
| Contact Point for Further Information |
Copyright Research and Information Center (CRIC) |
| Relevant Articles of the Copyright Law | Article 47bis on reproduction and interactive transmission to the public for Internet auction. |
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| Answer No. Downloading (reproducing within a computer) a work for personal (non-business) use is covered by the exception of personal use, and therefore the first downloading does not constitute infringement of copyright if it is done just for fun or learning. However, uploading such a work on an intranet for business use calls for the authorization of the right owner. Firstly, as to the right of transmission to the public, this right covers the act of transmission of radio communication or wire-telecommunication intended for direct reception by the public (also covering the act of making transmittable), however, the transmission within one premise is excluded (except for the transmission of computer programs). Therefore, any transmission by an intranet within one premise does not constitute infringement of the right of transmission to the public (except for that of computer programs). Secondly, as to the right of reproduction, the act of uploading a work in a server of intranet corresponds to reproduction, and therefore calls for the authorization of the right owner. Thirdly, as to the exception for the reproduction for private use, the concept of "private use" in the Copyright Law means a use "for the purpose of the user's personal use, family use or other similar uses within a limited circle", and it does not include reproduction for any business purpose. Therefore, uploading the copy of a work, which was made for personal use, on an intranet without authorization constitutes infringement of reproduction right. The amendment of the Copyright Law in 2009 narrowed the scope of the exception for private use by excluding digital audio/audiovisual downloading of illegally transmitted works, which is carried out knowingly. This amendment was made to cope with the increase of illegal transmission of musical and audiovisual works on the Internet. |
| Contact Point for Further Information |
Japan Society for Rights of Authors, Composers and Publishers (JASRAC) |
| The Japan Writers' Association |
| Relevant Articles of the Copyright Law | Paragraph (1), Article 30 on the exception for reproduction for private use |
| (viibis), paragraph (1), Article 2 on the definition of public transmission | |
| (ixquinquies), paragraph (1), Article 2 on the definition of the making transmittable | |
| Article 23 on the economic right of public transmission | |
| Article 49 on uses of copies made by exceptional provisions for other purposes |
6. Cable TV
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| Answer A number of right owners are involved in a TV broadcasting program as has been explained in Q 3-1. For example, in the case of an educational program, it seem to be related to such right owners as the experts who spoke in the program (literary works), the composers who created the background music (musical works), the performers who played the music, and the broadcaster itself. These right owners are granted, in terms of their works, performances and broadcasting programs, not only the rights of reproduction mentioned in Q 3-1 but also the rights of public transmission, which also covers the act of wire diffusion. (The simultaneous retransmission by wire diffusion of a performance within a broadcasting program is not covered by the performer's exclusive right but remuneration right.) Therefore, to transmit a preexisting TV program through the city's cable TV system, all such rights of all the right owners should be cleared by contracts beforehand in principle. It is "in principle" because there is an exception provided for in the Copyright Law, which stipulates in its Paragraph (2), Article 38 that it is permissible to diffuse by wire simultaneously (without reproduction) a work already broadcast for non-profit-making purposes and without charging any fees to audience or spectators. "Fees" here means any money, regardless of how it is called, to be paid for the provision of the programs. In the case of the question, in which receiving fees are charged, this exception does not seem to apply unless the fees are only for the maintenance of the system and never for the reception. Moreover, based on the Cable Television Law, the cable television organization which is licensed by the government should obtain the approval of the broadcaster to retransmit its broadcasting programs. This regulation by the government works independently from the private right of broadcasters granted by the Copyright Law. This way, the cable television organization anyway should obtain the approval of the broadcaster. All the broadcasters in Japan approve the retransmission by cable television under the condition that the broadcasting program should be retransmitted without any change or deletion, and therefore, such a partial retransmission as mentioned in the question is not approved. The retransmission of a broadcasting program after recording (reproducing) would be still more difficult because the rights of reproduction of all the relevant right owners should be cleared. |
| Relevant Articles of the Copyright Law |
Article 23 on the economic right of public transmission |
| Article 92 on the economic right of broadcasting and wire diffusion of performers | |
| Article 94bis on the remuneration right of performers for the retransmission of live performances in broadcasting by wire diffusion | |
| Article 95 on the remuneration right of performers for the retransmission of fixed aural performances by broadcasting or wire diffusion | |
| Article 99 on the economic right of wire diffusion of broadcasters | |
| Paragraph (2), Article 38 on the exception for the simultaneous retransmission of received TV programs by wire diffusion for non-profit-making purposes | |
| Paragraph (2), Article 13 of the Cable Television Law on the duty of licensed cable distributors |
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| Answer It is necessary to understand the nature and meaning of the contract to transfer the economic rights. Such a video tape for tourism advertisement corresponds to a cinematographic work under the Copyright Law. The economic rights belong to the video company, however, if they have been transferred to the city, they are now owned by the city. Also, if all the economic rights have been transferred to the city, it can carry out any exploitation of the video including presentation to the public, reproduction of tapes, distribution of the tapes to the public, wire diffusion by the cable TV system, and so on. However, such a video (cinematographic work) usually contains a number of other works reproduced or adapted in it, such as music, scenarios, original novels, and so on, and the copyright of such works are owned by each author. Therefore, the transfer of the economic rights in terms of the video as a whole does not mean that the city has all the relevant rights of the video (including the rights of the components within it). Usually, the video company makes contracts with such right owners so that the video could be used for the advertising purpose, to some extent, without further authorization. It may also be possible that some components within the video, such as the scenario, had been made by an employee of the company and the economic rights have been transferred to the city. However, transmission through the cable TV system may not have been included in such contracts or other arrangements. It is necessary to obtain further authorization of the relevant right owners at least in terms of the music and scenario, for which collective societies are established. Therefore, when ordering the creation of a video, all possible ways of uses in the future should be included in the first contract, and it is much more important than obtaining the economic rights of the video as a whole. Actually, the specialized video companies scarcely transfer all the economic rights. |
| Contact Point for Further Information |
Writers Guild of Japan |
| Japan Writers Guild | |
| Japan Society for Rights of Authors, Composers and Publishers (JASRAC) | |
| Japan Association of Audiovisual Producers |
| Relevant Articles of the Copyright Law |
Article 16 on authorship of cinematographic work |
| Paragraph (1), Article 29 on ownership of economic rights in cinematographic works |
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| Answer The act of copying a film to a video tape corresponds to reproduction under the Copyright Law. Also, transmission through the cable TV system is public transmission. It is necessary, in principle, to obtain the authorization of the author in order to reproduce and/or transmit to the public works of authorship protected by copyright. The point in the question is whether the films are still protected by the Copyright Law. The present Copyright Law provides for that the term of protection of cinematographic works continues to subsist until the end of a period of 70 years following the making public of the work, or the creation of the work if it has not been made public within a period of 70 years following its creation. In the case of a cinematographic work, it is "made public" when its copies have been reproduced and distributed by the right owner or with his/her authorization, or when it has been presented or transmitted to the public by the right owner or with his/her authorization. According to the above provision on the term of protection, if a film was created but was not made public, being made open to the public just before the expiration of the 70 years, the total term of protection will be theoretically 140 years. Therefore, even though the films were made before WWII, their copyright may not have ceased to exist. However, the old Copyright Law, which was in force up to 1970, provided for that the term of protection of documentary films was up to 10 years after the publication (or up to 10 years after the creation, if not published), which was prolonged to 13 years. As there are some transitional provisions from the old Copyright Law to the present Copyright Law, it is sometimes quite difficult to know the term of protection of a very old film. Therefore, the crucial facts in terms of such films, e.g. the time of creation, whether published or not, whether made public or not, etc. should be checked and confirmed, though it is not likely that the films mentioned in the question are still protected by copyright. Another problem is how the library obtained the films. If they were sold in the market in an ordinary way, there will be no copyright problem in terms of its reproduction or public transmission unless the copyright still subsists. However, if they were donated by someone, the contract or any other agreement at the donation should be checked and respected. Even if the term of protection by copyright has expired, it is possible that such contract in the past as that to restrict certain uses may continue to be valid. The library should always pay attention to how its materials were obtained. |
| Contact Point for Further Information |
Japan Association of Audiovisual Producers |
| Relevant Articles of the Copyright Law |
Paragraph (1), Article 4 on the definition of making public |
| Paragraph (1), Article 54 on the term of protection of cinematographic works |