Partial Amendment of the Copyright Law and the Law concerning Exceptional Provisions of the Copyright Law Required in Consequence of the Implementation of the Universal Copyright Convention
Keiko Momii*
*Unit Chief of Legal Affairs, Copyright Division, Agency for Cultural Affairs
Introduction
The "Law concerning Partial" Amendment of the Copyright Law and the Law concerning Exceptional Provisions of the Copyright Law Required in Consequence of the Implementation of the Universal Copyright Convention was enacted on April 27, 2000, during the 147th Session of the Diet, and was promulgated as Law No. 56 of 2000 on May 8, 2000.
This amendment has been derived from the "Conclusions of Deliberations" released in December 1999 by the Copyright Council's First Subcommittee. It aims to develop and strengthen the copyright system based on trends in its use that reflect the progress and proliferation of information technology in recent years, while trying to ensure fair exploitation of works. At the same time, this amendment sets forth domestic-law provisions that are required as a consequence of Japan's signing of the WIPO Copyright Convention adopted by the World Intellectual Property Organization in December 1996.
The amendment focuses on the following three points:
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(1) | broadening of clauses, concerning the exploitation of works, that restrict copyrights in such a way as to favor audiovisually handicapped people; |
| (2) | reducing copyright owners' burden of proof in copyright-infringement lawsuits and significantly increasing the amounts of fines payable by legal persons; and | |
| (3) | incorporating provisions required as a consequence of Japan's signing of the WIPO Copyright Convention. |
This law shall in principle take effect on January 1, 2001, but, with regard to the amendments adopted due to (3) above, from the date on which the WIPO Copyright Convention takes effect in Japan.
I. Broadening of clauses, concerning the exploitation of works, that restrict copyrights in such a way as to favor audiovisually handicapped people
1. Background
The existing Copyright Law permits works to be reproduced without license and free of charge in Braille and as sound recordings for the purpose of their being lent to blind people through libraries for the blind and other establishments designated by cabinet order (Articles 37, 86, and 102). In recent years, however, the progress of digitization and networking has enabled use of works by the disabled in other diverse ways as well.In August 1999, moreover, the Prime Minister's Office Headquarters for Promoting the Welfare of Disabled Persons released a directive entitled "On the Review of Clauses That Discriminate against the Disabled". In that document, the government proclaimed its intentions to review by 2002 the provisions of laws that discriminate against disabled persons because of their physical and/or mental handicaps. The current issues concerning copyrights do not directly concern such discriminating clauses. But the move indicates that the government as a whole is committed to promoting disabled people's participation in social activities through various means that include enhancing their access to information.
Against such a background, the Copyright Council's Multimedia Subcommittee conducted a study of clauses that restrict rights relating to the disabled; the subcommittee's activities included the holding of several hearings at which testimony was received from a variety of parties concerned about these matters. Those hearings were followed up by the Council's First Subcommittee, which released its "Conclusions of Deliberations" in December 1999. This amendment is the culmination of these endeavors.
2. Summary of the amendment
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(1) | Allows unrestricted preservation and transmission of Braille data through personal-computer networks for visually handicapped people; and |
| (2) | Allows unrestricted transmissions of subtitles, through personal-computer networks for the hard of hearing, of the vocal content of television programs. |
(1) Preservation and transmission of Braille data for visually handicapped people
Article 37, paragraph (1) of the current law permits works to be reproduced in Braille. Related to this, in step with the progress of technology, Braille translation by personal computer has been increasing in recent years. However, the existing law does not allow exploitation of works by means of Braille data generated in that process.
This amendment has broken down the barrier by allowing the preservation and network transmission of Braille data (Article 37, paragraph (2)) on the grounds that: (a) in the existing environment in which human resources as well as material resources are limited, the preservation of Braille data converted by Braille-translation software and the effective use of such data through personal-computer networks are gaining importance in terms of the productive exploitation of Braille information; (b) Braille translations by personal computer and the preservation and network transmission of Braille data made possible by the recent progress in technology are considered to be advanced forms of exploitation that extend the scope of traditional reproduction in Braille and are permissible; and (c) there is little likelihood of appropriation by people who are not mentally or physically handicapped of Braille data generated in the process of Braille translation, so that no negative effects are likely with regard to either the normal exploitation of works or the interests of copyright owners.
The amendment also limits the right of the copyright owner to transfer the ownership of copies, so that copies of a work in which Braille data is preserved can be transferred without license (Article 47ter).
In addition, because reproduction in Braille has been permissible without being limited to specific establishments, no restriction is set forth as to the identity of the producer/provider in the reproduction and transmission of Braille data as well.
(2) Real-time television subtitles for the hard of hearing
In the past, there existed no clauses that restricted rights in favor of the hard of hearing. However, the progress of digitization and networking has made it possible to convert the vocal contents of a broadcast or wire-diffused work into subtitles and to distribute them on a real-time basis through computer networks (real-time subtitles) separately from the channel that is broadcasting the work. The amendment (Article 37bis) permits this form of exploitation on the grounds that: (a) it is highly necessary, particularly in the case of emergency, to enable the disabled to access broadcasts, including live news programs, to which subtitles are difficult to attach in advance; and (b) in such circumstances, people who are not hard of hearing are expected to turn to normal broadcasting programs without relying on real-time subtitles. Therefore, if the restriction of rights is limited to the provision of subtitles through networks (interactive transmission), without including the right to reproduce such subtitles, the interests of copyright owners are not likely to be unduly harmed, because the subsequent appropriation of such subtitles is not likely.
However, because the production of subtitles occasionally requires summarization due to inevitable limits on time, the right of adaptation is limited to only summarizations as provided for by Article 43, while indication of the source of the subtitles is required under Article 48.
Out of deference to authors' moral rights, no restriction is imposed with regard to an author's right to preserve the integrity of a work. Consequently, any modification of a work in a way that is against the author's intentions constitutes a violation of his or her moral rights.
Because, as mentioned above, the production of subtitles occasionally requires partial summarization of vocal contents, the law provides that the production of subtitles be undertaken exclusively by establishments that are able to maintain the necessary organization, facilities, and skilled personnel at specified levels, in order to protect authors' rights.
3. Article 37
In order, as a matter of public interest, to promote the welfare of the blind, Article 37 of the existing law permits (1) works to be reproduced in Braille (paragraph (1)); and (2) the making of sound recordings by libraries for the blind and other establishments designated by cabinet order, for the purpose of lending those recordings to the blind (paragraph (2)).In view of the growing popularity of Braille translation by personal computer in recent years, this amendment removes the restrictions on the right to preserve works as Braille data and to transmit such works through computer networks (paragraph (2)).
The "processing of Braille material by electronic computer" refers to Braille data generated in the process of translating works into Braille by personal computer. In this context, the amendment allows Braille data to be "recorded on memory media" or to be "sent by public transmission (which excludes broadcasts or wire diffusions, but includes rendering them transmittable via interactive transmissions)".
Specifically, the door is now open both to the recording on memory media, such as floppy disks, of works in the form of Braille data that are generated in the process of translation by personal computer, and to the uploading of works existing in Braille-data form to a Web site (thus rendering them transmittable), as well as to sending Braille-data files to the visually handicapped through computer networks (public transmission) all without any restrictions.
However, even after the amendment, paragraph (2) excludes from public transmissions both broadcasts and wire diffusions, because at present such forms of exploitation as simultaneous transmission of a work of the same contents to the public in Braille data by means of a broadcast or by wire diffusions have not yet come into practical use to a meaningful extent.
Although producers/providers of real-time subtitles are limited to entities designated by cabinet order, no such restriction is imposed on the reproduction in Braille data or on the public transmission of works in Braille data. Because in these cases, as in case of reproduction in Braille, the appropriation of such works by people who are not visually handicapped is unlikely, and so it was considered appropriate that unrestricted exploitation be stipulated regarding Braille data as well.
[ Replacement of the term "the blind" ]
Article 37 of the existing law permits a work to be reproduced in "Braille for the blind" (paragraph (1)). It also allows "establishments that promote the welfare of the blind" to make sound recordings of a work "for the purpose of lending such recordings for use by the blind" (paragraph (2)). In this context, "the blind" is not taken to exclusively mean people who are totally blind or amblyopic to an advanced degree. Moreover, the term "the visually handicapped" began to be introduced into other laws beginning around 1975. These two terms have existed side by side until now, and such coexistence has come to threaten a misperception that "the blind" refers exclusively to the totally blind or those who are amblyopic to an advanced degree.
Against this background, this amendment introduces a new clause that restricts rights in favor of "the hard of hearing", while an amendment, submitted during the current session of the Diet, to the Law for the Welfare of Physically Disabled Persons is to adopt the new phrase "sounds recorded for use by the visually handicapped". Therefore, in order to maintain consistency in legal terminology under these circumstances, this amendment provides that the term "the blind" be replaced by "the visually handicapped". But this merely represents a shift in the manner of reference and does not modify the scope of persons entitled to use works as indicated above.
4. Article 37bis
This article prescribes that an entity that is engaged in promoting the welfare of the hard of hearing and that is designated by cabinet order may convert authors' broadcasts or wire-diffused voices into characters and may distribute them by interactive transmission through computer networks (real-time subtitles) in parallel with the broadcasts and wire diffusions of such works or voices.The form of exploitation that is authorized is "interactive transmission (including, among various means of rendering contents transmittable, those rendering the contents transmittable by inputting the information into an interactive-transmission device connected to a telecommunication line made available to the public)". Simultaneous transmissions to the public through broadcasts or wire diffusions of subtitles converted from the vocal contents of the same broadcasts is not permissible under this amendment, because at present it is technically difficult to limit recipients to the hard of hearing and to grant to entities designated by cabinet order the right to rebroadcast, is not considered appropriate.
Furthermore, out of consideration for the protection of people holding various works-related rights, permission regarding interactive transmission is limited to situations when that is not accompanied by the production of copies, because, if there were no restrictions on the production of copies, they could be appropriated by people who are not hard of hearing, with the consequent risk that the interests of the holders of such rights would be harmed.
In addition, as mentioned earlier, the conversion of voices into real-time subtitles often requires partial summarization of the vocal contents. For this reason, in order to ensure fair and effective exploitation without undue harm to the interests of the copyright owner of the vocal content, this amendment provides that the exploitation shall be undertaken by entities that have been designated by cabinet order as possessing relevant capabilities at required levels.
The factors to be taken into account in designating such entities are the following:
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(1) | the provision of real-time subtitles is undertaken as a public service; |
| (2) | the entity possesses sufficient human and financial resources to ensure proper transmission/reception of real-time subtitles or their modifications; and | |
| (3) | the entity possesses management capability to properly exploit works for the purpose of benefiting the hard of hearing. |
5. Article 43
Article 43 permits translation and adaptation, etc. in accordance with the predominant purport of clauses restricting rights, when the exploitation of works is allowed pursuant to such clauses. This amendment permits the production of real-time subtitles.However, word-for-word conversion into printed characters of the vocal contents of a work can be difficult at times, due to the constraint of input speed. For this reason, item (iii) has been introduced to allow partial summarization of the vocal contents, but only to the extent that the content of the vocal work is not modified, by the person who makes the input when real-time subtitles are produced pursuant to the provisions of Article 37bis.
Adaptation that exceeds the scope of summarization might constitute an abusive infringement of the rights of adaptation and public transmission. In such a case, the holder of the rights to a vocal work may initiate a legal action to obtain a cease-and-desist order and/or to obtain damages from the infringer. The rights holder may also initiate criminal action by bringing charges against the infringer.
6. Article 48
If a work is exploited in accordance with clauses that restrict rights, Article 48 requires that the source of the work be indicated in a manner and to an extent deemed reasonable in the light of the form of exploitation, thereby to ensure effective protection of the author's rights.Along with the introduction of the clause that restricts rights concerning real-time subtitles, the obligation to indicate the source of the work is also newly adopted in this amendment. Essentially, real-time subtitles are a form of exploitation that is supposed to be used simultaneously with a broadcast. Nonetheless, the new obligation is regarded as an extension of the general practice of imposing such an obligation when clauses restricting rights are applied in the absence of an impediment such as technical difficulty. In cases where real-time subtitles are used independently or are used in connection with radio broadcasts, moreover, the source of those broadcasts is unknowable if it is not indicated clearly.
However, the amendment does not require clear indication of sources when Braille data is being preserved and transmitted. Because a clear indication of sources is necessary in order that readers, viewers, or listeners can readily know the identity of a work being exploited, there is no point in requiring such indication when a work is being preserved and transmitted in the form of Braille data, which is not readable by the public. Also, when outputting Braille data from Braille printers after the reception of Braille data, a clear indication of sources is already required, because any reproduction in Braille that occurs as provided for in Article 37, paragraph (1) must indicate the source of the work.
As a matter of fact, in almost all cases the sources of a work are indicated at the time that Braille data is generated, so as to facilitate compliance with the obligation to indicate sources at the later stage of reproduction in Braille and for the convenience of the users of works in Braille.
II. Measures to reduce a copyright owner's burden of proof in copyright-infringement lawsuits and to significantly increase the amount of fines imposed on legal persons
1. Background
For many years, lawsuits claiming damages for copyright infringement have been known for the meager monetary awards received by the complainants, as typically is the case in industrial-right-infringement lawsuits. However, as seen in the spread of the Internet in recent years, the progress of digitization and networking has diversified the forms in which works can be exploited. And this in turn has increased the risk of their unauthorized use, which has made it more important to bolster the efficacy of relevant legislation to protect the rights of authors.In regard to industrial property legislation such as the Patent Law, amendments adopted in 1998 and 1999 modified or added provisions to reduce a right holder's burden of proof in lawsuits requesting compensation of damages, thus enhancing the protection of such a person's rights. The 1998 and 1999 amendments also increased the amounts of fines that can be imposed on legal persons.
In the wake of this development, a special working group (concerned with the execution of rights and penalties, etc.) was established under the Copyright Council's First Subcommittee in July 1999, and it issued its report in October. The First Subcommittee followed up on this and in December 1999 released the conclusions of its deliberations. This amendment is based on these endeavors.
2. Summary of the amendment
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(1) | A copyright owner may, in exercising his or her rights, claim "the amount corresponding to the amount of money that would be received" reflecting the circumstances existing between the parties (Article 114, paragraph (2)). |
| (2) | If necessary to prove an infringement, the court may order a party to submit specified documents unless there is reasonable justification for the party to refuse to submit them. In this connection, the court may also order the presentation of documents in advance if necessary for the court to decide whether or not there is such reasonable justification for such a refusal (Article 114bis). | |
| (3) | If a court orders an appraisal to determine the amount of damages, the parties to the lawsuit shall be obligated to give necessary explanations to the appraiser (Article 114ter). | |
| (4) | If it is extremely difficult "due to the nature of those facts" to prove the facts necessary to determine the amount of damages incurred, the court may assess a reasonable amount of damages based on the overall dominant purport of the oral proceedings and the entire results of its examination of the evidence (Article 114quater). | |
| (5) | In order to strengthen the deterrent power of penalties in cases of copyright infringement, the maximum amount of fines imposed on a legal person pursuant to the double-implication clause is increased to 100 million yen, in comparison with 3 million yen that can be imposed on a natural person (Article 124, paragraph (1)) |
3. Article 114, paragraph (2)
Article 114, paragraph (2) authorizes the owner of a copyright or neighboring right to claim, as the amount of damages suffered by the owner, from a person who has intentionally or negligently infringed any of such rights, the profits resulting from that infringement. This provision aims to guarantee minimum compensation of damages without regard to the amount of actual loss.In the past, profits from infringement have been defined as "the amount of money that ordinarily would be received" for the exercise of the right. And in most copyright-infringement lawsuits, the amount of damage incurred has been determined based on generally accepted standards such as the royalty-rate rules for the use of works established by intermediary business organizations, on the basis of examples of licenses granted by rights owners to other persons, or on the practices within the industry concerned.
This amendment removes the term "ordinary" and thus clearly establishes that a reasonable amount of profits obtained from infringement can be determined based on actual circumstances relating to the parties to the lawsuit without regard to generally accepted standards. Suppose, for example, that a painting that was soon to be made public is reproduced unlawfully and the copies so made are sold in great numbers. After this amendment, the amount of damage incurred can be determined without regard to generally accepted rates for the use of paintings. If damage higher than normal can be determined to have resulted because the painting had not yet made public before its unlawful reproduction, the amount of damages can be determined on that basis, which contributes to the protection of the right-holder's interests.
It should be noted, however, that this amendment does not remove the "the minimum guaranteed amount". As in the past, a right holder may claim as compensation for damages "an amount of money that would be received" for the exercise of the right, without having to prove the occurrence of damage.
Will this arrangement induce claims of arbitrary amounts? That is not likely, because a right holder who requests compensation for damages based on this provision must prove that he or she is claiming "the amount of money that ordinarily would be received" by exercising his or her right.
4. Article 114bis
Article 114bis of the existing law provides, as a special provision of the Code of Civil Procedure, that a court may order the parties to a lawsuit to submit documents necessary for the court to determine the amount of damages caused by an infringement, unless there is reasonable justification for a party to refuse to submit them. However, submission of documents necessary to prove an infringement, for example, is governed by the basic principles of the Code of Civil Procedure, and thus a court may not order submission of a document that contains a trade secret. However, in step with the spread of the Internet in recent years, there has been an increase in the number of cases in which a right holder has difficulty knowing the actual extent of an infringement. This situation has triggered calls for a procedural reform to make the facts of infringement easier to prove for a right holder.Against such a background, this amendment aims to facilitate the evidence-gathering processes by broadening the scope of a court's order to submit documents. As a special provision of the Code of Civil Procedure, it authorizes the court to order the submission of documents, such as a list of a source program or data that shows how the computer program operates or a list of customers, considered "necessary for proving an infringement". Under this new provision, the court may order submission of a document if that is deemed necessary for proving infringement, in the absence of reasonable justification to refuse such submission, even if the document contains a trade secret and that thus up to now has, pursuant to the provisions of the Code of Civil Procedure, escaped being subject to a submission order.
In this context, "reasonable justification" has been defined in a patent-related lawsuit (in a March 25, 1966, decision by the Osaka District Court) to mean a situation in which a document, if submitted, might disclose elements of trade secrets unrelated to the subject of a dispute. In addition, when a party cannot be expected to be in possession of a necessary document, that fact is thought to constitute "reasonable justification".
If a party to a lawsuit refuses to obey an order to submit a document, the court may accept the other party's allegations pertaining to the contents of the document in question as true and correct by invoking Article 224 of the Code of Civil Procedure.
Moreover, as a means of judging whether there is "reasonable justification" or not as provided for by the Code of Civil Procedure, this amendment has introduced a "in camera procedure". In judging whether or not there is reasonable justification for a refusal, the court shall compare and weigh the disadvantage sufferable by the possessor of the document from disclosure thereof and the disadvantage sufferable by the party to the lawsuit from nondisclosure thereof. In this connection, the in camera procedure enables the court to require the possessor of a document to submit it in advance if the court deems that such is necessary for it to reach a judgment, thus avoiding unnecessary disclosures of trade secrets.
In order to avoid unnecessary disclosure of trade secrets, the court may also limit the portion of a document that needs to be submitted and/or may put a limit on the manner of its inspection. Furthermore, when a document containing a trade secret is presented in the course of a lawsuit, the party who received the disclosure may not use or disclose that information for the purpose of securing illicit gains or harming the interests of its possessor. For example, the receiving party is not allowed to use the trade secret in a business that competes with that of the person who presented the document. Noncompliance with this provision constitutes "unfair competition" under the Unfair Competition Prevention Law and subjects the offender to liability in damages (Unfair Competition Prevention Law, Articles 2 and 4)
These provisions concerning an order to submit a document apply mutatis mutandis to a verification in court proceedings that constitutes an examination of evidence by a judge based on perceptions obtained through direct inspection and observation of the evidence's innate and/or phenomenal features through the judge's senses. In this respect, the mutatis mutandis application of these provisions to the submission of a document necessary for verification is limited to the purpose of "proving an infringement". This limitation is justified on the grounds that, when required in order to determine the amount of damage incurred, such a document is submitted in accordance with an order to submit, and that such examination of the document is sufficient for the judge to understand the contents of the document.
5. Article 114ter
Appraisal is a system by which third-party experts report on their perceptions or opinions about certain facts in order to supplement a judge's own knowledge and judgment.In a copyright-infringement lawsuit, for example, the documents needed to determine the amount of damage resulting from the illegal distribution of computer software via the Internet are thought to have been processed by computer or produced by special software. If such documents are submitted, it would be very difficult to identify relevant portions and to make meaningful analyses concerning the amount of damage suffered. Nonetheless, the system of appraisal under the Code of Civil Procedure does not impose on a third-party appraiser a duty to explain his or her opinion.
In order to enhance fairness and speed in court proceedings and to facilitate the processes by which a right holder can prove the amount of damage that has resulted, this amendment obligates the parties to a lawsuit to explain to the appraiser matters that are necessary for him or her to make an appraisal.
An appraiser does not need any special qualifications. He or she is designated by the court based on the needs of each case. In the situations covered by this Article, an appraisal is ordered when that is necessary for a court to determine the amount of damage incurred. In that sense, the people designated as appraisers presumably are neutral parties who have professional knowledge, such as of accounting (certified public accountants, for example), or are people having professional skills that enable them to analyze documents processed by computer software.
By the way, the Article prescribes no disciplinary measures in case a party to a lawsuit fails to cooperate with an appraiser and thus does not penalize that party for such failure. Such generosity, however, is likely to be offset if the judge's decision regarding sentencing is adversely affected by an appraisal report containing a statement that the appraisal work could not be completed thoroughly enough due to a lack of adequate explanation by the other party.
6. Article 114quater
This article, as in the case of Article 248 of the Code of Civil Procedure, aims to reduce the burden of proof under the Copyright Law in certain circumstances. Under this provision, the court may assess "a reasonable amount of damages" "if, due to the nature of the facts in question, it is very difficult to corroborate the facts needed to determine the amount of damage incurred".Article 248 of the Code of Civil Procedure provides that if, in a lawsuit claiming compensation for damage incurred, it is extremely difficult to determine the amount of damage incurred "due to the nature of the damage", the court may assess a reasonable amount of damages based on the overall predominant purport of the oral proceedings and the entire results of the examination of evidence. This applies, for example, to the amount of damages for the death of an infant, which is difficult to determine in precise terms. In such a case, the court is authorized to determine the amount of damage incurred based on statistical data and other factors.
In copyright-infringement lawsuits, however, there are instances where that provision is not applicable, such as, for instance, where by karaoke performances and the like there is continuing infringement of a right relating to musical performances. In such a case, although the number of performances after the revelation of the infringement might be countable, it can be exceedingly difficult to retroactively determine the number of performances that preceded the revelation. Under such circumstances, the difficulty in determining the amount of damages cannot be said to derive from the "nature of the damage" and so does not necessarily warrant the application of the above-mentioned provision of the Code of Civil Procedure. The amendment aims to fill this void.
In a similar vein, in a case of copyright infringement via the Internet, the court may determine the amount of damage suffered in the past based on the scale of the infringement (such as the number of accesses of a Web site) over a certain length of time after the revelation of the infringement.
Suppose, then, that a pirated version of a videotape is sold across Japan while the copyright owner lives in Tokyo. In such a case, although the number of pirated versions sold in Tokyo can be determined by investigation, a hunt for such numbers in other prefectures would involve an enormous amount of time and expense. In such circumstances, the court may determine a reasonable total as the amount of damage suffered nationwide, based on the number of sales in Tokyo.
7. Article 124, paragraph (1)
Article 124, paragraph (1) of the existing law, known as a "double-implication clause", provides that if a person who is an employee or who is otherwise associated with a legal person commits, in connection with the business of that legal person, a breach of copyright that is punishable under law, a penalty shall be imposed upon both the legal-person employer and the offender. In such cases, the maximum amount of a fine that can be imposed on the employer is 3 million yen, the same as the amount that can be imposed on a natural-person employee.The basic philosophy underlying double-implication clauses was spelled out in February 1991 by the Legislative Council of the Ministry of Justice's Criminal Affairs Subcommittee in its "Statement of Understanding", which says that, in order to make fines imposed on legal persons effective as deterrents, the amount of a fine imposed on a legal person can be separated from that imposed on a natural person. In determining the amount of such a fine, the Statement continues, "The criterion should primarily be how much can be expected as necessary to function as an effective deterrent. Therefore, a fair and reasonable amount should be set based on the difference in financial resources between a legal-person employer and a natural-person employee, while taking into account from a comprehensive viewpoint the predominant purport and purpose of the law in question, the nature of the violation, and the scale of operation of the legal person under consideration".
At present, many cases of copyright infringement involve the activities of legal persons. Such activities include the manufacture and distribution of pirated versions of videotapes and infringement of the right of presentation committed as the business of a legal person, and organized, large-scale crimes such as illegal reproduction of works by business firms. This situation calls for imposition of fines in amounts that will be effective as deterrents. In part for this reason, in part because legal persons can not be disciplined by penal servitude such as imprisonment, in part because of the difference in financial resources between natural persons and legal persons, and also in conformity with the trends regarding the reform of other intellectual-property legislation, the maximum amount of a fine that can be imposed on a legal person was raised to 100 million yen, approximately 30 times higher than the amount that can be imposed on a natural person.
Article 119, item (1) provides that any person who infringes an author's moral rights, copyright, right of publication, or neighboring rights shall be punishable by imprisonment not to exceed three years or by a fine not to exceed 3 million yen. The new maximum amount of a fine on a legal-person employer is applicable only to acts of infringement other than violation of an author's moral rights. This is because, unlike in the case of an infringement of a copyright, a right of publication, or a neighboring right, it has not yet been established that, in the case of a violation of an author's moral rights, the involvement of a legal person heightens the scale and possibility of a violation.
As regards a violation of an author's moral rights and other offenses that do not constitute acts of infringement, the maximum amount of a fine on a legal-person employer remains unchanged at the same level as that which can be imposed on a natural person.
This is because, as mentioned above, in the case of a violation of moral rights, it has not yet been established that involvement of a legal person heightens the scale and so on of such an offense. Other offenses that are not included as infringements (Article 119, item (ii), and Articles 120 through 122) do not essentially involve infringements, although they are being treated mutatis mutandis as infringements of copyrights and so on. For this reason, there is a need for further study as to whether actual situations warrant heavier fines being imposed on legal persons.
III. Amendment required as a consequence of the Japan's signing of the WIPO Copyright Convention
1. Summary of the amendment
(1) Reciprocity rules shall be applied to the term of protection regarding works whose country of origin is a signatory to the WIPO Copyright Convention; and(2) Provisions of the Law concerning Exceptional Provisions of the Copyright Law in Consequence of the Implementation of the Universal Copyright Convention shall not be applied to works protected by the WIPO Copyright Convention.
Of the treaties adopted at the World Intellectual Property Organization (WIPO) in December 1996, the WIPO Copyright Convention was approved by Japan's Diet during its 147th session.
Regarding the matters contained in this Convention, relative steps were taken domestically via amendments to relevant laws in 1997 and 1999, thus substantially completing the conditions for the Convention to be concluded. In order for Japan to newly participate in other treaties, however, this amendment modifies the provisions concerning reciprocity rules in this nation's relations with other signatory nations.
2. Copyright Law Article 58
This Article provides, based on the provisions of the Berne Convention (Article 7, paragraph (8)) that spell out reciprocity rules concerning the term of protection for works whose country of origin is a member of the Berne Convention or the World Trade Organization, that if the term of protection in the subject country of origin is shorter than that provided in Japan, the term of protection shall be that granted in the country of origin. This amendment is intended to apply the reciprocity rules concerning the term of protection to works whose country of origin is a signatory to the newly concluded WIPO Copyright Convention.3. Article 10 of the Law concerning Exceptional Provisions of the Copyright Law Required in Consequence of Japan's Signing of the Universal Copyright Convention (Universal Copyright Exceptional Provisions Law)
Article 10 of the Universal Copyright Exceptional Provisions Law requires, in regard to works that Japan is obligated to protect under the Universal Copyright Convention, that a participating nation adoption of reciprocity rules concerning the term of protection and the compulsory licensing system concerning the right of translation as exceptional provisions of the Copyright Law. If the compulsory licensing system concerning the right of translation is applied to works governed by the WIPO Copyright Convention, it would restrict an author's right of translation and would jeopardize Japan's fulfillment of its duties under the WIPO Copyright Convention. To avoid such developments, this amendment provides that the provisions of the Universal Copyright Exceptional Provisions Law shall not apply to works protected by the WIPO Copyright Convention.[ Copyright Update Japan top ]
Copyright Update Japan 2000
Published by COPYRIGHT RESEARCH AND INFORMATION CENTER (CRIC).