9. Sound Recordings in Carillon, MD and Tape
|
| Answer An increasing number of carillons are set in such open places to the public as children's parks, which often function as a time signal. Some of them are established with mechanical dolls, and they are usually quite popular among the community people. The act of putting a children's song into a carillon to be played corresponds to sound recording (reproduction) under the copyright law. Therefore, if the copyright of the song has not expired yet (50 years after the death of the author), the author's economic right of reproduction applies to the act, which calls for his authorization. The concept of reproduction in the Copyright Law means any type of reproduction in a tangible form by means of printing, photography, sound or visual recording or otherwise, and therefore, sound recording is included in the concept of reproduction. For the authorization, as the rights of reproduction of the majority of musical works are collectively managed by JASRAC, it is appropriate first to contact JASRAC. As to the authors who are not members of JASRAC, it is necessary to contact each of them directly and obtain the authorization individually. The acts of shortening, modifying and arranging the music, when reproducing within a carillon, are usually covered by the author's economic right of adaptation and/or his moral right of integrity, and therefore, such acts any way call for the authorization of the author. As JASRAC is not managing the above rights, it is necessary to contact the author individually for the authorization. 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. |
| Contact Point for Further Information |
Japan Society for Rights of Authors, Composers and Publishers (JASRAC) |
| Each music publisher |
| Relevant Articles of the Copyright Law |
Article 20 on the moral right of integrity |
| (xv), paragraph (1), Article 2 on the definition of reproduction | |
| Article 21 on the economic right of reproduction | |
| Article 27 on the economic right of adaptatio | |
| Paragraph (7), Article 2 on the concept of musical performance | |
| Article 22 on the economic right of public performance |
|
| Answer The term, "works of authorship" may remind people of such tangible things as novels in books, music in CDs, pictures and so on, however, unfixed speeches are also works protected by copyright in a number of countries (excluding some countries such as the USA). A speech, which is a production in which thoughts and sentiments are expressed in a creative way just like other works, corresponds to a literary work under the Copyright Law together with novels, dramas, articles, etc. The speaker of the speech has copyright as the author, and therefore it calls for his authorization to record the speech on tape, to reproduce the same tapes and to reproduce it in written proceedings. These acts all correspond to reproduction. Both of the acts of recording the unfixed speech on tape and reproducing it in an MD call for the authorization of the author (speaker). The authorization is necessary also for the purpose of lending in the library. The act of lending by a library is covered by the right of lending and the acts of recording (fixing) and copying of a speech are covered by the right of reproduction, and therefore, all these acts call for the authorization of the author (speaker). There are some cases that the board of education records the speech and store it for the purpose of preservation. However, this act also corresponds to reproduction and therefore, the authorization of the author (speaker) is also needed. As to the relation to Intranet, please see Q5-6 of "5. Internet and Website". |
| Relevant Articles of the Copyright Law |
(i), paragraph (1) Article 10 on literary works |
| Article 21 on the economic right of reproduction | |
| Paragraph (3), Article 37 on the exception for sound recording in Braille libraries | |
| Article 49 on uses of copies made by exceptional provisions for other purposes |
|
| Answer Pieces of music and songs played in a musical contest are musical works protected by copyright except for classical ones the copyright of which has expired. Performing music in a musical contest in front of the public corresponds to the act of public performance under the Copyright Law, which is covered by the economic right of public performance of the author. However, the Copyright Law provides for an exception that it is permissible to publicly perform a work already made public, without authorization of the author, for non-profit-making purposes and without charging any fees to audience or spectators (provided, however, that the performers concerned are not paid any remuneration for such performances). Therefore, if the musical contest was planned and organized by the city for non-profit-making purposes, charging no fees, the acts of public performance there were covered by the above-mentioned exception. (It should be quite rare the case that the participating performers are paid.) As to the act of making a live recording mentioned in the question, which was to record music and songs performed in the contest, it corresponds to reproduction under the Copyright Law, and therefore, covered by the economic right of reproduction of the author. Also, apart form the musical works, the performances of the participating singers and instrument players are also recorded, the act of which is covered by the economic right of reproduction of the performers. Attention should be paid to the fact that the act of recording live performances is included in the concept of reproduction. This right is granted to all performers whether the performer is a professional or an amateur. The act of making a live recording of a musical contest for sale is not covered by the exception for the reproduction for private use, either, because it is not for personal use, family use or other similar uses within a limited circle. In short, the case mentioned in the question is covered by the economic rights of reproduction of both the authors and the performers, and therefore, the authorization should be obtained from both the authors (in practice, from JASRAC in terms of the majority of musical works) and all the participating performers. |
| 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 (1), Article 38 on the exception of public performances for non-profit-making purposes | |
| Article 30 on the exception for reproduction for private use | |
| Article 91 on the economic right of reproduction of performers |
|
| Answer The author of the school song is the songwriter, who actually created it. The majority of well-known songwriters are members of JASRAC, and they have entrusted all their relevant rights to JASRAC including those of the works to be created in the future. However, in the case of such a work created by an individual order as the case of the question, the relevant author (a member of JASRAC) may transfer the economic rights to the customer or authorize a certain range of uses stipulated in the contract, with the consent of JASRAC. In the case of the question, if the economic rights in terms of the school song have been transferred to the city, it is the right owner, however, the moral rights still remain on the author's side. The parody song is made by changing the words, and therefore, making a parody song without authorization may constitute an infringement of the moral right of integrity. Also, the use of the parody song may be an act considered to be infringement of the author's moral rights. The making of a parody song may also correspond to an adaptation of the original, which is covered by the author's economic right of adaptation, and therefore, calls for his authorization. The city, if it has obtained the economic rights by transfer, can claim cessation to the infringer based on the right of reproduction and/or adaptation. Also, the original author may claim cessation based on his moral right of integrity. However, if the parody song was made and developed spontaneously by a number of people, it should be difficult to identify the infringer(s). |
| Contact Point for Further Information |
Japan Society for Rights of Authors, Composers and Publishers (JASRAC) |
| Relevant Articles of the Copyright Law |
Article 20 on the moral right of integrity |
| Article 27 on the economic right of adaptation | |
| Article 61 on the transfer of copyright | |
| Paragraph (6), Article 113 on the acts considered to be infringement of author's moral rights |
|
| Answer The majority of folk songs are quite old, and therefore, their authors are usually not identified and their copyrights have mostly expired. In the case of such old folk songs, it is not necessary to care about copyright. However, if a folk song is a newly made one still protected by copyright, it is necessary to obtain the authorization of the author (or JASRAC in the case of a JASRAC member) for reproduction. Also, if it is an old folk song with the tones newly arranged and/or words newly changed, the newly created part may be protected by copyright. As to the performances carried out by the members of the folk song club, such members are protected as performers by the Copyright Law, and they are granted the economic right of reproduction whether they are professionals or amateurs. Therefore, to record their performances, it is necessary to obtain the authorization of all of them. As to the act of reproducing the first CD (mother CD) into many tapes to be distributed, the necessity of the authorization depends on the first contract (authorization). If the first authorization covers such further reproduction, too, there will be no problem. However, if the first authorization is only for the fixation (first recording), further authorization will be needed to produce tapes. Therefore, at the first authorization, it should be clarified that the authorization covers both fixation and further reproduction. |
| Contact Point for Further Information |
Japan Society for Rights of Authors, Composers and Publishers (JASRAC) |
| Relevant Articles of the Copyright Law |
Article 51 and 52 on the term of protection of economic rights |
| (xiii), Paragraph (1), Article 2 on the definition of sound recording | |
| Article 21 on the economic right of reproduction |
10. Digital Works
|
| Answer It is first of all necessary to make sure of the ownership of copyright of the multimedia content. Usually, what is called a multimedia content is a compilation of such various kinds of works and data as moving/still images, sound and music, narration and so on, which are integrated by a computer program therein. The typical examples are CD-ROMs for personal computers and TV games, but there are still other types which are developing rapidly. Such a multimedia content is similar to a cinematographic work, in a sense, because both of them include a number of components such as moving image, music, narration and so on, which have been created through the participation of a lot of authors. A number of multimedia companies make contracts with the authors of such components so that their copyrights may be transferred to the company. In the case of the multimedia content in the question, which was ordered by the city, its copyright seems to be kept by the maker of the multimedia content (unless the city made a contract to transfer the copyright from the maker to the city). In this case, the city is authorized to present the multimedia content to the public in the exposition, however, for other uses it should obtain further authorization from the maker. To make a number of CD-ROMs it seems necessary to reproduce and/or adapt the original, however, such acts call for the authorization of the copyright owner. Therefore, making CD-ROMs and selling them without authorization would constitute an infringement. Also, if some pieces of music are included in it, it is usually also needed to obtain the authorization to use the music independently, because the copyright of musical works are usually not transferred to the maker of the multimedia content. |
| Contact Point for Further Information |
Association of Copyright for Computer Software (ACCS) |
| Japan Society for Rights of Authors, Composers and Publishers (JASRAC) |
| Relevant Articles of the Copyright Law |
(ix), paragraph (1), Article 10 on works of computer programs |
| Article 21 on the economic right of reproduction | |
| Article 27 on the economic right of adaptation |
|
| Answer No. The computer program mentioned in the question seems to be a package program, which is sold as a CD-ROM. Computer programs are protected by the Copyright Law as a type of works of authorship. Copying a computer program, therefore, means the reproduction of a preexisting work which should be done with the authorization of the author. Installing the purchased computer program within the hard disc of a personal computer also corresponds to the act of reproduction. A number of CD-ROMs are sold without copy guard, and therefore, are quite easy to be copied, for example, for all computers in a office. Such an act is of course an infringement of copyright, and the infringer may be sued for the criminal sanction as well as civil remedies. Some people may think that the use within the computer class is limited in terms of the site, time and purpose, however, reproduction without authorization always constitutes an infringement, in principle, regardless of the nature of such aspects. However, as purchasing a number of package programs for a number of computers is troublesome and expensive, some computer program companies are providing special styles of contracts for companies and schools which need a number of the same computer programs. The concrete contents of such contracts vary but an example is to sell just one copy of the program and, at the same tine, to allow its reproduction up to a fixed number. Therefore, for the use in a computer class, the computer program company should be contacted to make sure if such a special contract is available. |
| Contact Point for Further Information |
Association of Copyright for Computer Software (ACCS) |
| Relevant Articles of the Copyright Law |
(ix), Paragraph (1), Article 10 on works of computer programs |
| Article 21 on the economic right of reproduction |
|
| Answer First of all the contract between the city and the computer program company should be checked. If the city just ordered the creation of the computer program to the company, it does not mean that the city actually created the program together with the company. In this case, it is the company alone that owns the copyright. If the city would like to obtain the copyright under such a contract, there should be a stipulation in it which says that the copyright should be transferred to the city. Also, paying necessary money has nothing to do with the authorship or the ownership of copyright. The money for the creation is considered to be the remuneration for the act of the making and does not mean any transfer of copyright. On the other hand, if the official(s) of the city actually participated in the creation of the program, the program is a work made by an employee in the course of his duties from the viewpoint of the city, and its copyright is co-owned by the city and the company. The procedures for the registration of a computer program are different from the other categories of works, and the application should be sent to the Software Information Center (SOFTIC) rather than the Japan Copyright Office (JCO) of the government. The reason for the difference is, for example, as a computer program cannot be seen without reproduction, it is necessary to have applicants submit a copy printed on microfilm and it should be checked by an expert. |
| Contact Point for Further Information |
Software Information Center (SOFTIC) |
| Relevant Articles of the Copyright Law |
Article 15 on works made by an employee in the course of his duties |
| (ix), Paragraph (1), Article 10 on works of computer programs | |
| Article 76bis and 78bis on registration of computer programs |