Partial Amendment of the Copyright Law in Conjunction with the Enactment of the Information Disclosure Law
Orie Kishimoto*
*Director, Research Cooperation Division, University of Kobe, Former Unit Chief of Legal Affairs, Copyright Division, Agency for Cultural Affairs
Contents |
| 1. Introduction |
| 2. Amendment to the Copyright Law in Conjunction with the Enactment of the Information Disclosure Law |
1. Introduction
The Law Concerning Disclosure of Information Possessed by Administrative Organs (Law No. 42 of 1999, hereinafter referred to as "the Information Disclosure Law") and the Law for the Development of Legislation relating to the Law concerning Disclosure of Information Possessed by Administrative Organs (Law No. 43 of 1999, hereinafter referred to as "the Relative Legislation Development Law") were adopted by the Diet on May 7, 1999, and were promulgated on May 14, 1999.
The Information Disclosure Law, based on the Administrative Reform Committee's December 1996 "Recommendations concerning the Establishment of a Legal Framework for Information Disclosure", aims to promote disclosure of information possessed by administrative organs, and thereby to contribute to the progress of fair and democratic administration as premised on the philosophical principle of the sovereignty of the people. The bills that proposed that law and the Relative Legislation Development Law were submitted on March 27, 1998, during the 142nd session of the Diet, and, after months of thorough deliberations, were approved during the 145th session of the Diet. These laws are to take effect on a date to be fixed by a cabinet order within two years of the date of their promulgation. The amendment provisions regarding disclosure based on information-disclosure ordinances are also to take effect on the same date. Until then, it should be noted, the rights provided for in the Copyright Law are not subject to any restrictions.
2. Amendment to the Copyright Law in Conjunction with the Enactment of the Information Disclosure Law
(1) Summary of the Information Disclosure Law
The Information Disclosure Law sets forth the right of any person to request disclosure of administrative documents and relevant procedures. The gist of the legislation is as follows:
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(1) | Scope of administrative documents: Documents and graphic or electro-magnetic records that are produced or acquired by the personnel of an administrative organ in the course of their performance of official duties and that are possessed by the subject administrative organ for the purpose of systematic use by its personnel |
| (2) | Persons entitled to seek disclosure of information: Any person may request disclosure of such administrative documents. | |
| (3) | Scope of information requiring disclosure: Documents other than those containing information unfit for disclosure, such as those whose disclosure enables identification of specific persons or might jeopardize national security, or those, retained by national organs, whose disclosure might discourage candid exchange of opinions | |
| (4) | Discretionary disclosure: Even if a document contains information unfit for disclosure, the head of an administrative organ may disclose the contents if he or she determines that disclosure is particularly necessary for the public interest. | |
| (5) | Procedure of request for disclosure: A decision regarding disclosure of information shall, in principle, be made within 30 days from the date of the request therefor. If the subject document contains information concerning a third party, the administrative organ may give the third party an opportunity to submit a statement continuing his or her opinion regarding the disclosure. | |
| (6) | Method of disclosure: Disclosure shall be made in such ways as inspection or delivery of copies if paper documents are involved and in other appropriate ways decided by cabinet order if electro-magnetic records are involved. | |
| (7) | Filing of complaint: If a complaint is filed in response to a decision to disclose information, the head of the administrative organ shall in principle refer the case to the Information Disclosure Review Board that is to be established in the Prime Minister's Office. |
(2) Balancing of the Information Disclosure Law and the Copyright Law
The enactment of the Information Disclosure Law, which requires disclosure of documents possessed by administrative organs, entails the need for that law to be balanced against the rights provided for by the Copyright Law, such as an author's right to make public his or her work (Article 18), an author's right to determine how his or her name shall be indicated on such a work (Article 19), and an author's right to reproduce his or her work (Article 21).
Under the Copyright Law, the author has moral rights such as the right to make public his or her work and the right to determine how his or her name shall be indicated on such work. The author also has property rights, including the right to reproduce his or her work, that are represented by a copyright. The protection of these rights needs to be properly balanced with smooth disclosure of documents as provided for by the Information Disclosure Law.
To achieve that purpose, Article 11 of the Relative Legislation Development Law contains a provision restricting an author's right to make public his or her work, an author's right to determine how his or her name shall be indicated on such work, and an author's copyright-related rights, such as the right to reproduce his or her work. The main provisions of the amendments to the Copyright Law that are based on this provision, and the purport of each of these amendments, are as follows:
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[ Purport of the provisions ]
The provisions of Article 18, paragraphs (3) and (4) take into account situations where administrative documents disclosed pursuant to the provisions of the Information Disclosure Law or an information-disclosure ordinance (hereinafter collectively referred to as "Information Disclosure Rules") contain an undisclosed work by a person outside of the administrative organ, and those provisions balance the relations between the author's right of making the work public and the existence of the undisclosed work in the disclosed administrative documents.
Of these provisions, paragraph (3) provides that consent to disclosure pursuant to the Information Disclosure Rules shall be assumed if an author: (1) has offered his or her work to an administrative organ of the state (item (i)) or to a local public body (item (ii)); and (2) has not declared, before the time that a decision regarding disclosure has been made (not after the time of disclosure), his or her intention not to consent to the disclosure of that work. As an interim measure, it is separately provided that such assumption of consent shall be limited to works offered to an administrative organ of the state or to a local public body after the Information Disclosure Law (Article 2 in the Supplementary Provisions of the Relative Legislation Development Law) takes effect.
In contrast, paragraph (4) categorically denies the application of the provision setting forth an author's right of making the work public without regard to his or her intention in situations where the dictates of public interest prevail over an individual's rights and interests. This might take place if a situation calls for: <1> mandatory disclosure (deemed necessary to protect the life, health, livelihood, or property of a person or persons) (Article 5, item (i), (b) and item (ii), proviso of the Information Disclosure Law); or <2> discretionary disclosure (judged by an administrative organ to be necessary for the public interest) (Article 7 of the Information Disclosure Law); or <3>disclosure made in the course of a public servant's performance of his or her official duties (Article 5, item (i), (c) of the Information Disclosure Law).
[ Legal effects of disclosure of a work not yet made public ]
Disclosure, of a work that has not yet been made public, in accordance with the provisions of Article 18, paragraphs (3) or (4) (or Article 42 bis) based on the Information Disclosure Rules does not constitute "making public a work" as described in Article 4 of the Copyright Law. For this reason, it should be noted, the work so disclosed is treated as "has not yet been made public" under the Copyright Law. Such disclosure, therefore, has no effect on the computation of the term of protection and the application of the restrictive provisions, nor does it prevent the author from exercising his or her right of making the work public.
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[ Purport of the provisions ]
The Copyright Law protects the author's right to determine whether his or her true name or a pseudonym should be indicated or not indicated on his or her work (right of determining the indication of the author's name). From the viewpoint of the smooth application of the Information Disclosure Law, however, the amended law provides that the provisions concerning the right of determining the indication of the author's name shall not in principle apply if the author's name is or is not indicated in accordance with the provisions of the Information Disclosure Law.
This exclusion applies in such situations as: (1) the author's name is indicated in the same manner as that already adopted by the author, based on the Information Disclosure Rules (Article 19, paragraph (4), item (i)); and (2) if an indication of the author's name is omitted based on the partial-disclosure provisions of Article 6, paragraph (2) of the Information Disclosure Law (Article 19, paragraph (4), item (ii)).
Partial disclosure, if made pursuant to the provisions of Article 6 of the Information Disclosure Law, constitutes modification and so on of the work. Nonetheless, the provisions concerning the right of preserving the integrity (Article 20) have not been changed by this amendment, because modifications made to the work in the course of disclosure pursuant to the Information Disclosure Rules are in principle deemed to constitute modifications "unavoidable in the light of the nature of a work as well as the purpose and the manner of exploitation" mentioned in Article 20, paragraph (2), item (iv) of the Copyright Law.
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[ Purport of the provisions ]
The disclosure of works pursuant to the Information Disclosure Law requires balancing not only with the author's moral rights such as the right of making the work public and the right of determining the indication of the author's name, but also with the copyright that represents his or her property rights. In this context, acts deemed to constitute disclosure under the Information Disclosure Law typically include "delivery of copies" and possibly other acts such as "playback of audiotapes or videotapes" for inspection. Of these, reproduction of documents and audiotapes involves the area where the right of reproduction (Article 21) operates, while playback of audiotapes involves an area where the right of performance (Article 22) and the right of recitation (Article 24) operate, and reproduction or playback of videotapes involves the areas where the right of distribution (Article 26) and the right of presentation (Article 26, which is to become Article 22bis as of January 1, 2000, due to the 1999 amendment discussed below) operate. In order to expedite the smooth application of the Information Disclosure Law, therefore, this amendment has introduced provisions that restrict copyright-related rights so that these acts of exploitation can be made freely (Article 42bis).
Notwithstanding the foregoing, "uploading a work to a Web site's homepage", which entails the operation of the right of public transmission (Article 23), "exhibition of a work", which entails the operation of the right of exhibition (Article 25), "lending of a work" ,which entails the operation of the right of lending (Article 26bis), and "translation and adaptation of a work", which entails the operation of the rights of translation, adaptation (Article 27), are not regarded as acts of exploitation for disclosure pursuant to the Information Disclosure Law. For this reason, these acts are thought to exceed the "extent deemed necessary for disclosure" prescribed in Article 42bis and thus are not subject to this provision. It is important, however, to achieve a reasonable balance between the limitations imposed on a copyright and the enhancement of efficacy in regard to the protection of an author's rights. For this purpose, a provision regarding the exploitation of works pursuant to the Information Disclosure Law has been adopted (Article 42bis) as part of Article 49, which is intended to prevent uses for other purposes, aiming to block the use of works for purposes other than disclosure pursuant to the Information Disclosure Law. Furthermore, in order to ensure consistency between the methods of disclosure provided for by the Information Disclosure Law (Article 14, paragraph (1) and to be further provided for in a cabinet order) and those provided for by information-disclosure ordinances, the "methods prescribed in the information-disclosure ordinances" in Article 42bis excludes "methods other than those prescribed in Article 14, paragraph (1) of the Information Disclosure Law".
[ Development of other provisions ]
As in the case of a copyright, in order to expedite smooth application of the Information Disclosure Law, limitations are to be imposed on the right of publication and neighboring rights (Articles 86 and 102).
[ Harmonization with the amendment of 1999 ]
Following the Copyright Law amendment effected by the Relative Legislation Development Law, the Law for Partial Amendment to the Copyright Law (Law No. 77 of 1999) was enacted by the Diet in June 1999. The creation of the right to transfer ownership, one of the main features of this amendment, required the balancing of the Copyright Law as amended with the disclosure of works pursuant to the Information Disclosure Law. Against this background, the amended Copyright Law of 1999 introduced a provision restricting the right to transfer ownership (Article 47ter), and by including therein instances in which copies of works can be made in accordance with the provision of Article 42bis, enabled not only reproduction of works but also unrestricted transfer of those copies if the works are disclosed in accordance with the provisions of the Information Disclosure Law.
(This report was written in July 1999.)
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Copyright Update Japan 2000
Published by COPYRIGHT RESEARCH AND INFORMATION CENTER (CRIC).