7. Events Organized by the City
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| Answer There must be a number of different arrangements for an exposition such as those organized directly by the local government with participation contracts with a lot of companies and organizations or those organized by a non-profit-making organization, based on the initiative of the local government with similar contracts. In many cases, the organizer sets the general theme of the exposition, coordinating the overall arrangements, while individual activities and events are planned and carried out by each participating entity. Also, the organizer usually establishes the rules and/or guidelines for individual activities and events, which are agreed upon by the contracts between the organizer and the participants. The admission fees are usually paid to the organizer and it has the right to use the collected fees. It can be said, therefore, that the organizer has the power to control the pavilions as well as take the responsibility and, at the same time, has the right to enjoy the economic benefits brought about by the exhibition. On the other hand, the activities and events within each pavilion are planned and carried out by each participating company or organization, rather than the organizer, and the participant should take the first responsibility of such activities and events. It is virtually impossible for the organizer to check how all the works in all the pavilions are used and how contracts of authorization are made. Therefore, the organizer should make it clear by the contract that it is each participating entity that should take care of copyright contracts. The organizer should include in the contract with the participant the obligation of the participants to be careful for the use of copyrighted works and also provide appropriate information and guidance. Also, the contract should include some provisions on the responsibility of the participants for adequate copyright clearance, declaration of non-existence of infringement, and obligation for compensation for any possible infringement and damages to the organizer. Furthermore, it is desirable to make it obligatory for the participants to report to the organizer all the works used in the pavilions, classifying the categories such as artistic works, pictures, musical works, and so on, as well as the information on the right owners and authorization contracts with them, so that the organizer be kept informed of the use of works and be able to check the reports. If any copyright infringement is found in one of the pavilions, it is likely that the organizer is also accused, together with the actual infringer, as the entity which is responsible for the overall management and is enjoying the economic benefits. JASRAC requires the organizer, when it authorizes the use of musical works in such an exposition, to take care of the contract collectively in terms of all musical works to be used in all pavilions, considering its responsibility and benefits. |
| Contact Point for Further Information |
Japan Society for Rights of Authors, Composers and Publishers (JASRAC) |
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| Answer The documentary video corresponds to a cinematographic work under the Copyright Law, and presenting it to the public on the large display within the pavilion of the exposition corresponds to the act of public presentation under the Copyright Law. The author of a cinematographic work is, as is provided for explicitly by Article 16 of the Copyright Law, "those who, by taking charge of producing, directing, filming, art direction, etc., have contributed to the creation of that work as a whole". Also, this article provides for that the authors of novels, scenarios, music or other works adapted or reproduced in a cinematographic work are not the authors of the cinematographic work, because they are preexisting and independent works. Scenarios are usually not used in a documentary video but music is quite often used, i.e. reproduced within it. When musical works are used, it is necessary to obtain the authorization of relevant authors (in terms of not only reproduction but also public presentation), because the right owners of the works reproduced within a cinematographic work also has the economic right of presentation to the public. For this authorization, the user should contact JASRAC for the majority of musical works. In the case of a cinematographic work, the author is not necessarily the right owner in terms of the economic right, which is the case only for such a work. Article 29 of the Copyright Law provides for in terms of the owners of the economic rights of a cinematographic work that the economic rights in a cinematographic work belong to the maker (film/video company) of that work, provided that the authors of the work, who are not employees of the maker, have undertaken to participate in the making. The definition of the "makers of a cinematographic work" is provided for in Article 2 of the Copyright Law, which is, "those who take the initiative in, and the responsibility for, the making of a cinematographic work". However, in the case of the video mentioned in the question, the company (company A) participating in the exhibition and presenting the video may not be the "maker" of the video, because it is usually the case that such a company has ordered the making of the video, paying the necessary money, to another company (company B) specialized in video-making. In such a case, the "maker" of the video is company B. Therefore, in such a case, if there has been no contract between company A and company B to transfer the economic rights from the latter to the former, the economic rights are continuously owned by company B, and company A should obtain the authorization for the public presentation of the video from company B. Also, if company A created the video for itself by mobilizing its employees alone, the video corresponds to a "work made by employees in the course of their duties", and therefore, company A is the author of the video. In this case no authorization of others is needed in terms of the use (public presentation) of the video, however, as to the works reproduced or adapted works, it is necessary to acquire the authorization of all relevant right owners. For musical works JASRAC should be contacted. |
| Contact Point for Further Information |
Japan Society for Rights of Authors, Composers and Publishers (JASRAC) |
| Relevant Articles of the Copyright Law |
Paragraph (3), on the concept of cinematographic works |
| (x), paragraph (1) Article 2 on the definition of makers of cinematographic work | |
| (xvii), paragraph (1), Article 2 on the definition of presentation | |
| Article 15 on works made by an employee in the course of his duties | |
| Article 16 on authorship of cinematographic work | |
| Article 22bis on the economic right of presentation | |
| Article 29 on the ownership of economic rights in cinematographic works |
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| Answer The PR video corresponds to a cinematographic work under the Copyright Law, and presenting it to the public in the pavilion corresponds to the act of public presentation under the Copyright Law. Presentation here may sound like the showing of a film on a large screen, however, showing a video on a display also corresponds to presentation. A crucial point here is the meaning of "made by the Tourism Division". It may literally mean that the officials working in the Tourism Division themselves made the video, using a camera, recording the sound and so on. In this case the video is a "work made by employees in the course of their duties", and the city can present it to the public as the author of the video. Although the authorization of the authors of the works adapted or reproduced in the video is needed, it is usually obtained by the contract to create the video. However, it is usually the case that the Tourism Division ordered the making of the video to a specialized video company. In this case, the economic rights are owned by that company, and the city should obtain the authorization of the company to present the video to the public. Therefore, it is better for the city to make a contract to transfer the economic rights from the company to the city. If there is no such contract, the economic rights are owned by that company as has been explained in Q7-2. If there is such a contract and the economic rights have been transferred to the city, the city, as the right owner may present the video to the public. However, in this case, the contract between the video company and the authors of the works adapted or reproduced in the video should be checked. For the musical works, JASRAC should be contacted. |
| Contact Point for Further Information |
Japan Society for Rights of Authors, Composers and Publishers (JASRAC) |
| Relevant Articles of the Copyright Law |
Paragraph (3), Article 2 on the concept of cinematographic works |
| (x), paragraph (1) Article 2 on the definition of makers of cinematographic work | |
| (xvii), paragraph (1), Article 2 on the definition of presentation | |
| Article 15 on works made by an employee in the course of his duties | |
| Article 16 on authorship of cinematographic work | |
| Article 22bis on the economic right of presentation | |
| Article 29 on the ownership of economic rights in cinematographic works |
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| Answer Yes. Such a type of transmission to the public is called "wire diffusion to the public" in the Copyright Law, which is a part of "public transmission" covered by copyright. Public transmission under the Copyright Law covers three types of wired/wireless transmission to the public: (1) interactive transmission, which automatically takes place upon request from members of the public, (2) simultaneous transmission, which continuously reaches members of the public, and (3) e-mail/facsimile services, which takes place upon request from members of the public manually. Wire diffusion to the public belongs to the above second category. The definition of public transmission in the Copyright Law excludes transmission within one premise from the scope of public transmission. (The public transmission of computer programs within one premise is not excluded.) This "one premise" means the adjoining area occupied by the same entity within one building or one site. Therefore, public transmission between the places occupied by different entities falls under public transmission, even if the places are apparently sited within one premise, and calls for the authorization of relevant right owners. An exposition is organized under one common theme and the organizer is carrying out collective management of the whole exhibition site. However, there are usually a number of buildings and pavilions within the site, most of which are planned, organized and occupied by different organizations and companies. Therefore, wired transmission within the whole exposition site, connecting a lot of buildings and pavilions seems to correspond to "public transmission" under the Copyright Law, and the transmitter corresponds to a "wire diffusion organization" under the Copyright Law. "Wire diffusion organizations" in the Copyright Law means those who engage in the wire diffusion service continually whether they are profit-making or non-profit-making organizations and whether they are licenses by the government or not. Therefore, if the cable distribution system continues to transmit music, the transmitter corresponds to a wire diffusion organization under the Copyright Law. Such wire diffusion of music calls for, firstly, the authorization of the authors, viz. the composer and the songwriter. This authorization can be obtained through JASRAC in terms of a number of musical works. Also, it is necessary to pay remuneration to the singers and music instrument players, who are called "performers" in the Copyright Law. This remuneration is called "secondary use fee", which is not paid directly to each performer but collectively through Japan Council of Performers' Organizations (GEIDANKYO) and the Recording Industry Association of Japan (RIAJ). There used to be an exceptional provision (Article 14 of the Supplementary Provisions) in the Copyright Law, which provided for that the author's economic right of public performance did not apply to that making use of sound recordings of musical works. Therefore, the act of public performance of music by playing a CD was not covered by copyright but the act of public transmission of music by wire diffusion was covered. However, this provision was abolished in 1999. |
| Relevant Articles of the Copyright Law |
(ix)bis, paragraph (1), on the definition of wire diffusion |
| (vii)bis, paragraph (1), Article 2 on the definition of public transmission | |
| (ix)ter, paragraph (1), Article 2 on the definition of wire diffusion organizations | |
| Article 23 on the economic right of public transmission | |
| Paragraph (7), Article 2 on the concept of musical performance | |
| Article 22 on the economic right of public performance |
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| Answer By making a video of old shrines and temples, what are reproduced in the video tape seem to include such things as the buildings, gardens, walls and gates as those located outdoors as well as the statues, paintings, drawings and other artistic works as those located indoors. Some of them may be works of authorship but the terms of protection of most of them seem to have already expired, and therefore, they do not seem to be protected by copyright. Also, even if some of them are still protected by copyright, the shrines and temples usually just purchased them without obtaining the copyright. The old shrines and temples are controlling and managing such buildings and things as the owners and/or administrators of the physical things, not necessarily having copyright. Therefore, it is in fact possible to shoot a video of the walls, buildings and gardens from the outside. However, with a view to make a video of the statues, paintings, drawings and so on, which are located in the inside of the shrines and temples, it is necessary to get into the buildings. As the shrines and temples are controlling such tangible things, it is necessary to obtain their approval to come into the site and shoot them. In giving the approval, if the shrine or the temple set some conditions in terms of the future use of the video, it means that there is a contract which binds the city. The request for payment for shooting is also an offer for a contract, which means that the shrine or temple would not allow the shooting crew to come into the site to make a video of statues, paintings, drawings and so on without paying the money. This request for payment is not based on copyright but the status of the administrator of the buildings and other tangible things. Therefore, if there was no terms on the range of the future use of the video at the approval (contract) of shooting, the shrines and temples have no right (copyright or other property rights) to control the use of the video as well as what are fixed within it as images. There are some extremely exceptional cases of the court judgments by which the existence of the right of publicity was confirmed in terms of the use of the picture of a cruiser and an advertising balloon, which had been taken from the outside without approval, however, they are rare cases. |
| Relevant Articles of the Copyright Law |
Article 206 of the Civil Code on 91 on ownership |
| Article 51 on the term of protection of author' economic rights |
| 8. | City's History Book, Picture Postcard, Poster, Monument Engraved with Works, etc. |
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| Answer It is necessary to obtain the authorization of all the relevant newspaper publishers. The majority of newspaper articles are protected by copyright. Although "news of the day and miscellaneous facts having the character of mere items of information" are not protected, such articles are rare except for very short ones such as the notice of someone's death. Ordinary newspaper articles are written with creativity in terms of the expressions of the sentences, the titles and so on, and therefore, correspond to works of authorship protected by the Copyright Law. Also, pictures on news papers are cinematographic works under the Copyright Law and therefore, protected by copyright. To use a newspaper page as a whole in the city's history book by reducing and reproducing it, it is necessary to obtain the authorization of not only the right owners of all the articles and pictures but also the right owner of the edited page as a whole. Each page of a newspaper corresponds to a compilation under the Copyright Law, because the selection and arrangement of the components is done in a creative way. Among the articles and pictures, those created by the employees of the newspaper publisher, without the names of the creators, are those created as their duties and made public under the name of the publisher, and therefore, correspond to "works made by an employee in the course of his duties", the copyright of which is owned by the publisher. Also, the copyright of the newspaper pages as compilations is owned by the publisher because the selection and arrangement of the articles and pictures is usually done by the employee of the publisher, and therefore, the compilations are also "works made by an employee in the course of his duties". In short, to reproduce newspaper pages in the city's history book, it is necessary to obtain the authorization of the newspaper publisher, in terms of the pages as compilations and individual works such as articles, pictures, etc., as well as other individual authors, if any, in terms of the works created and reproduced in the newspaper. |
| Contact Point for Further Information |
Japan Newspaper Publishers and Editors Association (NSK) |
| Each Newspaper Publisher |
| Relevant Articles of the Copyright Law |
Paragraph (2), Article 10 on news of the day and miscellaneous facts |
| (viii), Paragraph (1), Article 10 on photographic works | |
| Article 12 on compilations | |
| Article 15 on works made by an employee in the course of his duties |
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| Answer There must be a number of touristic places in which a stone monument is set, which is engraved with the lyrics of a relevant song. The act of engraving the monument with the lyrics of a song corresponds to the reproduction of a musical work under the Copyright Law. Reproduction of lyrics may sound like recording in a CD or copying in a song book, however, engraving a stone is nothing but reproduction. Therefore, the authorization of the author is needed to carry out this reproduction, and this authorization can be obtained through JASRAC in terms of the musical works of its members (otherwise, the authorization of each author himself is needed). The fee for the case of engraving a stone monument is set by JASRAC in terms of the number of the musical works to be reproduced rather than the number of the monuments (copies). The same policy applies to such cases as reproducing musical works on panels, posters, etc. to be exhibited in the places open to the public. Attention should be paid to the possibility to be considered as an infringement of the author's moral right because of the way to make and/or set the stone monument. Paragraph (6), Article 113 of the Copyright Law provides for that an act of exploitation of a work prejudicial to the honor or reputation of the author is considered to constitute an infringement on his moral rights. Moral rights of authors are exclusively personal to him and inalienable, and JASRAC is not carrying out the management of such rights. Therefore, making and setting a stone monument, it is better to consult the author directly to obtain his/her approval in terms of the way to exhibit the work. |
| Contact Point for Further Information |
Japan Society for Rights of Authors, Composers and Publishers (JASRAC) |
| Relevant Articles of the Copyright Law |
(ii), paragraph (1), Article 10 on musical works |
| Article 21 on the economic right of reproduction | |
| Paragraph (6), Article 113 on the acts considered to be infringement of author's moral rights |
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| Answer It seems that the city bought the statue for installing it in the city park, which means that the city has the ownership of the statue as a tangible existence. However, as has been explained, the ownership of a tangible existence is different from the ownership of copyright. In other words, owing a work does not necessarily mean owing its copyright. It is usually the case that, even if the ownership is transferred, the copyright is not assigned. Copyright is granted to a work, which is an intangible existence. The following explanation is based on the assumption that the copyright is not transferred to the city. In the case of an original artistic work located in open places, the economic rights are limited considerably. For example, if someone takes a picture in the park, it is possible that the statue installed in the park is also reproduced in the picture. However, in such a case, the economic right of reproduction does not apply. It would not be accepted by the general public that such an act of reproduction also calls for the authorization of the author. On the other hand, however, it would be also unreasonable to make all types of exploitations free from copyright. Therefore, Article 46 of the Copyright Law provides for the cases in which the authorization of the author is needed and those in which it is not needed. For example, the authorization of the author is needed when such an artistic work is reproduced exclusively for the purpose of sale. Reproducing an artistic work for postcards and posters is the most typical way of exploitation of such a work, and therefore, the making of such postcards and posters for sale should be done with the authorization of the author. |
| Contact Point for Further Information |
Japan Artists' Association |
| Each author |
| Relevant Articles of the Copyright Law |
Article 206 of the Civil Code on 91 on ownership |
| Article 46 on the exploitation of an artistic work located in open places |
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| Answer Copyright of the work of an applicant (author) to the contest is granted automatically to the author in the first place. However it is usually the case that the guideline for the applicants indicates that the copyright should be transferred to the organizer of the contest, because the prizewinning work is expected to be used in various ways. The case of the question seems to be one of such cases. There could be some cases in which calendars of the same design are sold in other cities as follows. (1) Infringement It is possible that someone saw the prizewinning poster, and copied it for calendars. In this case, the act constitutes an infringement of the right of reproduction, and therefore, the city, as the right owner, may claim to the maker (infringer) cessation of the production and distribution of the calendars. Also, if the shops are selling the calendars, being aware of the infringement, it is also possible to claim the cessation of the sale to the shops. (2) Coincidence It is possible that two works were created independently with the same design by chance. In this case, the city could not stop the production and sale of the other work. The Copyright Law just provides for the author's exclusive rights to control the exploitation of his/her own work and the exclusive right would not be applied to the works of others even if they are similar. (3) Double Commitment It is possible that the original author authorized someone else to reproduce his work or transferred his copyright. As copyright is an intangible property, it is quite easy to transfer it to more than two people by double commitment. In such a case, each of the both can assert that he is the authentic right owner. Therefore, to cope with such a possible case, the Copyright Law provides for a system of the registration of copyright transfer, without which the transfer would not be effective against any third party. In the case of a double commitment, the registration is given on a first-come-first-served basis, which is the same system as the registration of real estates. Therefore, if the city registered the transfer before any one else, it can claim the ownership of copyright against all third parties. It is anyway better to register the rights, after making a contract of the transfer. |
| 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 77 on registration | |
| Article 78 on procedures for registration | |
| Article 112 on cessation | |
| Article 114, Article 114bis-114quinquies on claim for damages |
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| Answer It calls for the authorization of the author to use a photographic work in a poster or a Website. It is therefore needed to look for and find the author, contact him/her and obtain the authorization. However, especially in the case that the picture was created and disclosed long time ago, it is often quite difficult to identify and/or locate the author. The question is a case in which the author has been identified but cannot be located. Also in such a case, in principle, the work cannot be used without authorization. However, to cope with this problem, namely when the right owner cannot be known or located, the Copyright Law provides for a compulsory license system, by which a work can be used without authorization of the right owner by a compulsory license issued by the Commissioner of the Agency for Cultural Affairs. Before the amendment of the Copyright Law in 2009, the conditions to use this system were strict and there had been only few precedents, however, by this amendment such conditions were eased and the possibility to use this system was drastically expanded. Also, the objects of this compulsory license system were expanded from works to performances, phonograms, broadcasting programs and wire diffusion programs. The concrete and conditions are provided for in the relevant governmental ordinances, which are roughly described below, and for further details, please contact the Copyright Division of JCO (Japan Copyright Office) of the Agency for Cultural Affairs. Firstly, to request the compulsory license, it is not sufficient that the right owner cannot be identified or located, but significant efforts to identify/locate the right owner should have been made. Based on the amendment of the Copyright Law in 2009 the concrete meaning of "significant efforts" was provided for in the relevant governmental ordinance. In more concrete terms, such efforts as survey in publications on the information of relevant authors, inquiry to relevant collective societies, inquiry through newspapers and the Website of CRIC (Copyright Research and Information Center) are required. Also, the user should wait for the issue of compulsory license before the amendment; however, the new provision provides for that the work can be used before the issue of compulsory license by depositing compensation, the amount of which is designated by the Commissioner of the Agency for Cultural Affairs. Even if the compulsory license is not issued after all, the use while waiting for the judgment does not constitute infringement. |
| Contact Point for Further Information | Copyright Research and Information Center (CRIC) |
| Copyright Division of the Japan Copyright Office (JCO), Japanese Government |
| Relevant Articles of the Copyright Law | Article 67 on the compulsory license |
| Article 67bis on exploitation of a work while applying for a compulsory license |
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| Answer It seems impossible to take any legal action against the publisher. The city is the owner of the antique, and therefore, can control any use of it as a tangible existence. The term, tangible existence, is not often used in daily conversations and may not be easy to understand, however, it simply means ordinary "thing". The controlling of the use of a tangible thing means, for example, exhibiting it in a museum, lending to someone, etc. Taking a picture of the antique for the first time calls for an approval of the owner, because the owner himself should put it in front of the photographer, which is one of the styles of the control over the tangible existence. However, as the ownership of a thing simply means the controlling power over the tangible existence, once its picture is taken, the ownership of the antique would not reach the use of the picture in the future. Therefore, the owner of the antique cannot stop any exploitation of the picture by anyone including other publishers. Also, the antique seems to correspond to an artistic work, however it is not possible to stop the use of the picture based on its copyright, because the term of protection of works of authorship expires 50 years after the death of the author. The terms of protection of almost all antiques have already expired. However, if there was a contract between the city and the first publisher which stipulates that the publisher should not allow anyone to make use of the picture, the situation is different. If the first publisher allowed another publisher to copy the picture in spite of the contract, the city may sue the first publisher for a breach of contract, but even in this case, it is impossible to sue the second publisher directly. The picture itself is usually protected by copyright, and in the case of the question, the copyright seems to be owned by the first publisher. Therefore, if the second publisher reproduced the picture without authorization of the right owner (the first publisher) the first publisher may claim cessation and/or damages. However, also in this case, the city cannot sue the second publisher. |
| Relevant Articles of the Copyright Law |
Article 206 of the Civil Code on 91 on ownership |
| (vi), paragraph (1), Article 10 on artistic works | |
| (viii), paragraph (1), Article 10 on photographic works | |
| Article 51 on the term of protection of author' economic rights |