The old Copyright Law was overhauled in 1970, and some 30 years have gone by since the current Copyright Law was enacted. The remarkable development of electronic technologies during this period has brought about great changes to the environment in which the copyright system finds itself, including digitization of information and the distribution of information by networks.
The Copyright Law of Japan has undergone the following successive revisions to comply with international conventions and form an orderly system for the appropriate protection and fair exploitation of works while keeping up with these technical developments.

In the revised law, Article 8, which prescribes the range of phonograms protected under the Copyright Law of Japan, was augmented by a newly added item 3 listing "phonograms to which Japan has the obligation to grant protection under the Phonograms Convention." "Phonograms to which Japan has the obligation to grant protection under the Phonograms covention" means phonograms whose producer is a national of a signatory country of the Phonograms Convention. Under the Phonograms Convention, the general principle for the standard of protection is the "nationality" of the phonogram producer (Article 2 of the convention), and as an exception, a country that adopts the place of first fixation as its only standard for protection may declare that it will adopt the "standard of place of fixation" in lieu of the standard of nationality (Article 7 (4) of the treaty). In Japan, which has long adopted the standard of nationality (Article 8 item 1) in addition to the standard of place of fixation(Article 8 item 2), the protection of phonograms of signatory countries follows the principle of nationality, in accordance with the general principle of the Phonograms Convention.

Article 97 paragraph 1 of the Copyright Law provides that a phonograms producer has the right to demand secondary use fees for commercial phonograms if a broadcaster or cable broadcaster carries out broadcasts using commercial records. But because there is no obligation concerning this point in the Phonograms Covention, this revision exempts phonograms for which there is an obligation of protection under the Phonograms Convention from the right to demand secondary use fees.

Article 96 provides that a phonograms producer has the exclusive right to reproduce records. But the Phonograms Convention provides that a record producer should be protected from unauthorized reproduction for the purpose of "distribution to the public" (Article 2 of the treaty). Thus, under this revision, Article 96 paragraph 2 was provided, by which for phonograms for which Japan has the obligation to grant protection under the Phonograms Convention, the phonogram producer has the right of reproduction only in the case of reproduction for the purpose of distribution.

Under Article 7 (3) of the Phonograms Convention, a signatory country is not obligated to provide protection to phonograms that were fixed in the country itself before this treaty came into effect. Thus, under paragraph 2 (transitional measures) of the supplementary provisions of this revised law, it was provided that phonograms fixed before the Phonograms Convention took effect in Japan did not enjoy protection of related rights under the revised law.

2. Expansion of the record rental business and protection of copyright holders, etc. (revision of 1984)

In the revised law, Article 26bis was newly added giving an author the "right of lending" for all works except movies (movies were covered by the "right of distribution" as previously). This right of lending was recognized for foreign authors as well, based on the convention's general principle of national treatment. However, under Article 4bis of the supplementary provisions, for the present, the right of lending was not extended to the lending of books and magazines. The business of lending books and magazines has been freely practiced for many years, without unfairly harming the economic interests of rightholders. And although rights are recognized concerning book lending, no system was in place for administering such rights in a centralized way, so in practice it was difficult for rightholders to exercise their rights, and on the other hand it was difficult for book lenders to obtain the consent of rightholders. In view of these points, it was decided to exclude the lending of books and magazines from the right of lending. But the right of lending was extended, as per the principle of this legislation, to items consisting mainly of sheet music, because the number of copies of sheet music is small to begin with, and the lending of sheet music may greatly affect the economic interests of rightholders. For performers and phonograms producers, the "right of lending" was granted for commercial phonograms (Article 95bis paragraph 1, Article 97bis paragraph 1). It was provided that this right could not be exercised for lending that took place after the lapse of a period to be set by Cabinet order lasting not less than one month and not more than 12 months (it was set at 12 months in Article 57bis of the Copyright Law enforcement order), beginning with the date a commercial phonogram was first sold within the country. And if a commercial phonogram that reproduced a performance or record made within the duration of the related rights was to be lent to the public after the lapse of the period during which this right of consent operated, the performer and phonograms producer had to be paid an appropriate amount of remuneration (Article 95bis paragraph 3, Article 97bis paragraph 3). This right to demand remuneration, like the right to demand secondary use fees for commercial phonograms (Article 95, Article 97), has the nature of an obligation right (not exclusive right ).

Japan joined the Phonograms Convention in 1978, but lending is not covered by this treaty. In this revised law it was therefore decided not to recognize right of lending to foreign performers and phonograms producers (Article 97bis paragraph 1, paragraph 3 parenthesized wording).

Under the revision to Article 30, it was held to be a copyright infringement to reproduce a work using automatic duplication equipment available to the public, even if carried out for the purpose of private use. But in line with the concept that such acts of reproduction by individuals are not sufficiently malicious in nature to deserve criminal penalty, it was decided to subject individual users only to civil liability and not to apply penal provisions (Article 119). On the other hand, it was decided to impose the same penalties as for copyright infringement on persons who allowed automatic duplication equipment to be used for illegal reproduction for a profit-making purpose (Article 119 item 2). In the field of copying books and magazines, making copiers available to the public had become quite widespread. But rightholders had no system in this field for clearing rights in a centralized way, and it was difficult for them to actually exercise their rights; conversely, it was in practice difficult for users and commercial providers of copying equipment to obtain the consent of rightholders. In view of this situation, it was decided, as a provisional measure, to exclude photocopying machines from the above automatic duplication equipment (Article 5bis of the supplementary provisions).

3. Legislation to deal with the special nature of computer programs (revision of 1985)

With the development and increasingly widespread use of computers, it gradually became more important to legally protect computer programs, and internationally as well, the general trend was to protect programs under copyright law. In Japan, the Ministry of International Trade and Industry (MITI) and others had proposed a Program Rights Law as independent legislation providing for a shorter protection period and the introduction of a system of compulsory license. But the Agency for Cultural Affairs, stressing international harmony, took the position that programs should be protected under copyright law, which in the medium-range and long-term perspective would also secure the interests of Japanese authors of programs. Efforts to coordinate a response within the government reached an impasse. Precedents in Japan had already found computer programs to be protected under the Copyright Law, but the Copyright Law was partially revised to clearly protect computer programs under that law and include provisions to deal with their special nature. A provision defining computer programs was added (Article 2 paragraph 1 item 10bis), and program works were added to the provision enumerating examples of works (Article 10 paragraph 1 item 9). Copyright law protects an "expression" that embodies creativity, so the general legislative principle is to exclude from copyright protection the language used as a means of expression, the ideas behind the expression, and principles, rules, etc. But anticipating that confusion would arise in actually developing and using programs, confirmatory provisions were added to make sure that there would be no misconstrual concerning programming languages used for writing programs, rules, and algorism and the like (Article 10 paragraph 3).

In the case of a program work, it is usual in exploiting a program to have to correct errors (bugs) in it or make additions, deletions, and corrections in it, such as corrections to improve its functions (making a more advanced version). And by the nature of programs, making such corrections, additions, and deletions would hardly damage the fame or reputation of the author, so it seems appropriate to allow such corrections, additions, and deletions to be made even without the agreement of the author. Thus, from this viewpoint, corrections needed for making use of a program were provided as an exception in cases in which there was no application of the right of preserving the integrity (Article 20 paragraph 2 item 3). Moreover, if a program is to be used on a computer, there will be many occasions on which reproduction or adaptation becomes necessary. For example, it is often necessary to make a reproduction of a program for preservation (a backup copy) in order to be prepared for any loss or damage of the program's recording medium, or to modify the program to conform with the special nature of the user's work or the model of computer being used. To require the consent of the copyright holder for such reproduction that is naturally required in connection with using a program on a computer might impede the fair exploitation and smooth distribution of programs, and even if rights were restricted concerning such uses, such restrictions would not be deemed to unfairly prejudice the interests of the author. Thus, it was decided to restrict copyright concerning reproduction and adaptation required for using a program on a computer (Article 47bis). There are also cases in which even an act that is allowed under the copyright limitation provision may be regulated under a program use consent contract. In these cases, it is still unclear what type of validity a so-called shrink-wrap contract has.

Under the Copyright Law, there has long been a first issue date or first publication date registration system as a system for giving public notice by registration of the date when a work was first made public (Article 76), but in view of the special nature of programs, a new registration system for preserving rights was instituted that focuses on the date of creation (Article 76bis). Based on the concept that, due to the special nature of programs, various considerations must be taken into account concerning the procedure for registering them and how they should be made public, there was a desire to take care of all of the problems of program registration together. It was therefore decided to prescribe in a separate law the matters necessary for registration concerning programs and to handle everything there (Article 78bis). A Bill on Exceptional Provisions for the Registration of Program Works was submitted to the 104th session of the Diet in 1986. This was passed and adopted on May 16, and on May 23 it was promulgated as Law No. 65 of 1986. About 500 registration applications are filed every year.

Whether to recognize a "right of use" in programs was a subject of debate, but recognizing right concerning use on computers would pose problems that would impede the distribution and use of programs; for example, the purchaser of a program might not be able to use it because he/she had not obtained consent concerning its use. On the other hand, in view of the great economic value arising from the use of programs on computers, if a rightholder had no rights concerning use itself, even if an illegal reproduction of a program were used commercially on a computer, problems would be created in securing the proper benefits of the rightholder. Thus, to ensure the smooth distribution of programs and proper protection of the rights of the program author, it was decided to deem the act of using an illegal copy of a program commercially on a computer to be a copyright infringement (Article 113 paragraph 2).

4. Dealing with databases and new media (revision of 1986)

Encyclopedias, dictionaries, poetry anthologies, and magazines have long been protected under the Copyright Law as "compilation works." When databases came onto the scene, they came to be thought of, by interpretation, as constituting compilation works under the Copyright Law and were taken to be works protected under the Copyright Law. However, databases allow one to instantaneously retrieve information using a computer, and in both their creation and their use they have a special nature that is decidedly different from traditional compilation works such as encyclopedias. It was therefore thought necessary to have a provision focusing on the special nature of databases rather than merely flexibly applying existing concepts. This resulted in a provision defining databases (Article 2 paragraph 1 item 10ter) and a clarification of the concept of a "database work," with a provision in Article 12bis paragraph 1 stating, "Databases which, by reason of the selection or systematic construction of information contained therein, constitute intellectual creations shall be protected as independent works "

There has been rapid development and popularization of means of transmitting information by wire or cable to provide individual items of information in response to user requests, with the introduction of database online services and Captain and other videotext services. Such modes of wire transmission have heretofore been construed as being included in "wire broadcasting." But since the general public understands "wire broadcasting" to denote the simultaneous transmission of identical information, as in cable television or cable music broadcasting, it did not seem necessarily appropriate to deal with such transmission-on-request services merely by interpretation. "Wire transmission" was thus newly established as a concept to comprehensively express transmission by wire to the public, including these simultaneous modes of conveying information by wire or cable. Among forms of "wire transmission," those modes by which the same information is sent simultaneously, as in cable television or cable music broadcasting, are captured by the concept of "wire diffusion."

The means of information conveyance known as cable broadcasting previously performed a supplementary function in broadcasting by making it possible to receive otherwise hard-to-receive signals, but in recent years cable broadcasting become a powerful information medium in the same way as ordinary broadcasting, as seen in urban cable television. This field is expected to develop further in the future as more programming is provided via broadcast satellites. Thus, it was decided to protect cable broadcasters under the same related rights system as for conventional broadcasters (articles 100bis through 100quater of the law).

Formerly, with reference to related rights treaties, the protection period for related rights was set at 20 years. However, in view of the trend, internationally as well, to extend this protection period, the protection period for related rights was extended to 30 years (Article 101).

The act of producing a pirated edition and the act of distributing it had been deemed to be acts of infringing copyright, etc. However, it is difficult to pinpoint the place of an act of production, and it is not always easy to specify the participants and locations involved in individual acts of distribution. It was therefore decided to count as an act that infringes a copyright, etc. not only the act, as previously, of knowingly distributing pirated editions, that is, goods produced by an act infringing a copyright, etc., but also the "act of possessing" knowingly a pirated edition for the purpose of distribution (Article 113 item 2).

Under the Convention for the Protection of Performers,etc., provisions were added obligating Japan to provide protection to performances, records, and broadcasting subject to protection under the Copyright Law (Articles 7, 8, and 9).

It was prescribed that if broadcasting or cable broadcasting was carried out using commercial phonograms, the performer and producers of phonograms had the right to receive secondary use fees with respect to the broadcaster or cable broadcaster (Article 95 and Article 97), and in connection with the conclusion of the Convention for the Protection of Performers,etc., the right to receive secondary use fees was also granted to performances and phonograms which Japan was obligated to protect under this convention. Under the provisions of Article 16 1(a)(iv) of this convention, Japan issued a declaration concerning application of the provisions of the convention's Article 12 (secondary use of phonograms) saying that it would not be applied to the phonograms of a producer of phonograms who was a national of a signatory country that did not apply the provisions of this article, and that reciprocity would be followed concerning the protection period as is clear in Article 95 paragraphs 2 and 3 and was applied correspondingly in Article 97 paragraph 2.

Previously, under the provisions of Article 2 paragraph 5 of the supplementary provisions, it had been prescribed that for the time being the provisions concerning related rights would not apply to foreign performers who did not have permanent residence in Japan, but it was decided to delete this paragraph and extend all protections to performances in Japan by foreign performers, regardless of whether they had permanent residence in Japan.

With regard to the lending of commercial phonograms, performers who performed in Japan and domestic producers of phonograms were granted a one-year right of consent and thereafter a 29-year right to demand remuneration. At the time, lawsuits were pending between domestic phonogram producers and those in the record rental business concerning the exercising of this right, and under these conditions it could not be concluded that an orderly system of use was in place. In view of these circumstances, in this revision it was decided not to grant foreign rightholders this right of lending. Furthermore, with regard to rights related to the lending of commercial phonograms, this practice had not been anticipated at the time the Convention for the Protection of phonograms,etc. was written, and no obligation is imposed in terms of treatment as a domestic national under this convention.

In November 1990 (Heisei 2), it was decided that foreign performers and phonogram producers would be granted rights concerning lending, against the background of the prospect that rules regulating lending would be formed concerning phonograms inside Japan. It was decided to grant rights concerning lending (right of consent for one year after sale, and right to demand remuneration for the remaining 49 years) to performances protected under the Convention for the Protection of Phonograms,etc. and phonograms under the Phonograms Convention and the Convention for the Protection of Phonograms,etc. (Article 95bis paragraphs 1 and 3, Article 97bis paragraphs 1 and 3). Also, in view of the fact that the principle of nonretroactivity is adopted in the Phonograms Convention and the Convention for the Protection of Phonograms,etc., it was provided under Article 2 and Article 3 of the supplementary provisions of the revision law that rights concerning lending would not be granted to performances and phonograms dating from prior to the accession to these treaties.

When the present law was enacted in 1970, the protection period for related rights was set at 20 years, which is the minimum period set in the Convention for the Protection of Phonograms,etc., and thereafter, in conformity with the international trend toward a longer protection period, the protection period for related rights was extended from 20 years to 30 years. In the intellectual property negotiations in the Uruguay Round of GATT (the General Agreement on Tariffs and Trade), however, the majority view among advanced countries was to set the protection period for related rights at 50 years, and the general trend among the major countries of the world was to set the protection period for related rights at 50 years or more. Based on this international situation, Japan also decided to extend the protection period for related rights to 50 years, and amended the law accordingly.

Japan had acceded to the Phonograms Convention in 1978 (Showa 53) and the Convention for the Protection of phonograms, etc in 1989 (Heisei 1), but related rights were granted only to phonograms and performances subsequent to the accession to these conventions. Under the convention's principle of nonretroactivity, no related rights were granted to phonograms and performances prior to accession. However, in view of the actual situation in the Japanese phonogram industry, in which a company signs a master disc (matrix) supply contract (license contract) with a foreign phonograms producer, pays a large amount of royalties, is given the master disc, and manufactures and sells commercial phonograms, at the time the present law was enacted, the provisions of Article 121 item 2 (penal provisions) were included in order to prevent unfair competition, under the concept of providing essential protection by prohibiting unauthorized reproduction and distribution. Originally, this item applied only to those manufactured in Japan (domestic re-pressed discs), with no prohibition of reproduction from imported discs. But the development of digital recording technology led to the appearance of many makers and dealers who committed the act of unauthorized reproduction from imported discs. If this situation were left unchanged, the protection of domestic phonograms manufacturers (domestic re-pressers) would be extremely disadvantaged, and the interests of foreign manufacturers (foreign re-pressers) of imported discs as well as the interests of foreign phonograms manufacturers who are beneficiaries of indirect protection would be threatened. The scope of applicability of Article 121 item 2 was therefore expanded to also include imported discs (foreign re-pressed discs). The Article 121 item 2 was altered into the Article 121bis. However, taking into consideration the balance with phonogram producers protected by related rights, it seemed inappropriate to expand the protection to all imported discs, so it was limited to commercial phonograms manufactured by foreign re-pressers to whom the master disc for the phonogram had been provided by a phonograms producer of a signatory country to the Phonograms Convention or the Convention for the Protection of Performers, etc. Also, in order for control of the distribution of unauthorized reproductions to have practical effect, as in Article 113 paragraph 1 item 2 (deemed infringement), "possession" for the purpose of distribution was added to the previous acts of reproduction and distribution as punishable offenses (Article 121bis).

Previously, it had been Prescribed that the rights of copyright holders and other rightholders would not extend to the act of reproduction carried out individually or within a home, based on the view that such acts were quantitatively negligible and did not unfairly harm the rights of copyright holders, etc. (Article 30). However, the development and popularization of audio and video recording equipment in recent years had made it possible to easily record music and movies, and making such recordings had become a widespread practice in people's lives. Internationally, a growing number of countries, mainly Germany, France, and other European countries, were introducing certain compensation measures for rightholders in response to this problem of private audio and video recording, and in October 1991 even the United States passed a law instituting a system of compensation payments for digital audio recordings. In view of the ever-wider use of audio and video recording equipment in everyday life and this international trend, in Japan also it was decided to introduce a compensation payment system for private audio and video recording. Paragraph 2 was newly added to Article 30 obligating payment of compensation to a copyright holder for reproductions for private use made by audio and video recording using digital equipment and recording media prescribed by Cabinet order (hereinafter called "private audio and video recording compensation payment"). Those having the right to receive compensation payment are copyright holders (Article 30 paragraph 2) as well as performers and phonogram producers (under Article 102 paragraph 1, Article 30 paragraph 2 applies correspondingly to the use of performances and phonograms). With regard to the treatment of foreign rightholders, although there is no unambiguous provision concerning application of the principle of treatment as a domestic national with regard to private recording as there is in the Berne Convention, in consideration of Japan's international position, the principle of national treatment is applied to works, performances, and phonograms for which there is a treaty obligation to protect the right of reproduction, providing for the same compensation payment as for Japanese works, performances, and phonograms.

Copyright and related rights must generally be exercised by the person who has the right, but in a mode of use such as private audio and video recording, it is in practice impossible for individual rightholders to ascertain the state of use of their works and collect compensation payments, while for users it is extremely troublesome and impractical to make a compensation payment every time a personal audio or visual recording is made. Therefore, in the private audio and video recording compensation payment system, it was decided that if there was a body designated by the Commissioner of the Agency for Cultural Affairs, the exercising of rights would be carried out only by that body, and a centralized administration system was adopted (Article 104bis paragraph 1). An organization for this purpose, the Private Audio Recording Compensation Payment Administration Association (SARAH), which is an incorporated association, was established on March 3, 1993, and on the same date it was designated as an administrative body by the Commissioner of the Agency for Cultural Affairs.

The devices and recording media subject to compensation payment are prescribed as digital media that are designated by Cabinet order. Originally, three types of devices and recording media were designated: digital audio tapes (DAT), digital compact cassettes (DCC), and mini-discs (MD). Later, with effect from November 1, 1998, compact disc recordable (CD-Rs) and compact disc rewritable (CD-RWs) were added as designated types. With respect to video recording, originally there were no home-use devices on the market that recorded images digitally, but in recent years such equipment has become commercially available. Therefore, in June 1999, the digital video cassette recorder (DVCR) and data video home system (D-VHS) were designated, with enforcement taking effect in July 1999. The Private Video Recording Compensation Payment Administration Association (SARVH:Society for Administration of Remuneration for Video Home Recording) was established on March 26, 1999 as the body for administering compensation payments for private video recording, and on March 30 it was designated as an administrative body by the Commissioner of the Agency for Cultural Affairs.

The amount of compensation payment is determined by the administrative body, which files an application for approval with the Commissioner of the Agency for Cultural Affairs, who refers the matter to the Copyright Council and then grants approval. * Fiscal 1993 and fiscal 1994 Audio recording devices: 1% of the standard price (the standard price being taken as 65% of the catalog listed price) However, the maximum amount shall be 1,000 yen (or 1,500 yen if there are two audio recording functions). Audio recording media: 1% of the standard price (the standard price being taken as 50% of the catalog listed price) * Fiscal 1995 to fiscal 1998 Audio recording devices: 2% of the standard price (the standard price being taken as 65% of the catalog listed price) However, the maximum amount shall be 1,000 yen (or 1,500 yen if there are two audio recording functions). Audio recording media: 3% of the standard price (the standard price being taken as 50% of the catalog listed price) * Fiscal 1999 Audio recording devices and media: Same rate as the previous year. Video recording devices and media: As a measure for the next three years, 1% of each standard price (the same as for audio recording) The compensation payments in fiscal 1997 amounted to about 2.5 billion yen.

Under Article 96 paragraph 9, in the case of phonograms for which Japan bears an obligation of protection only under the Phonograms Convention Treaty, it had been decided that the right of reproduction would hold only if phonograms reproductions were made for the purpose of distributing them to the public. This is due to the fact that the protection under the Phonograms Convention Treaty is limited to "protection from the act of reproduction for the purpose of distribution to the public" (Article 2 of the convention). This time, motivated to provide fuller international protection for related rights, it was decided to also grant to foreign phonograms producers a right of reproduction not limited to the purpose of distribution. Under this revision, compensation payments are also made for private recording of phonograms for which there is an obligation of protection only under the Phonograms Convention. However, it was decided that for the time being, as previously, the right of reproduction would not apply to reproduction for the purpose of broadcasting or cable broadcasting (Article 15bis of the supplementary provisions).

The GATT Uruguay Round of negotiations, which began in September 1986, finally came to an agreement in principle on December 15, 1993, and the content of the World Trade Organization (WTO) Establishment Agreement was worked out at ministerial-level meetings held in Marrakesh, Morocco from April 12 to 15, 1994. The WTO Establishment Agreement covers, besides trade in goods covered previously by GATT, a wide range including trade in services and trade-related aspects of intellectual property. Attached as a supplementary protocol to this WTO Establishment Agreement was an Agreement on Trade-Related Aspects of Intellectual Property Rights (the TRIPS Agreement), and the revision of the Copyright Law, etc. was made in order to supplement the content of this TRIPS Agreement. The TRIPS Agreement prescribes standards for the international protection of, and means for ensuring, intellectual property including copyright and patent, trademark, design right, geographical expressions, and the right to use the circuit arrangement of integrated circuits, and it imposes the following obligations on signatory countries concerning copyright: <1> compliance with the protection prescribed in the Berne Convention <2> copyright protection for computer programs and databases <3> granting of rights concerning the lending of computer programs, movies, and phonograms <4> protection of those basic rights among related rights concerning performers, phonogram producers, and broadcasters that are prescribed in the agreement

The content of the protection prescribed by the TRIPS Agreement has already been supplemented in Japan's Copyright Law, so this revision does not establish any new rights; what it does is to include what is related to the WTO Agreement signatory countries within the scope of what is subject to protection in Japan, and to provide for retroactivity of related rights. It was necessary to add to the performances, phonograms, and broadcasting protected in Japan the performances, phonograms, and broadcasting related to WTO member countries, and Articles 7 through 9 were revised. No particular revision was made to the provision of Article 6, which prescribes the range of works subject to protection, because the previous provisions already make it possible to add matters related to the WTO member countries to the matters it covers. National treatment is a principle in the Berne Convention, but reciprocity is applied to the protection period, and similar measures were taken for matters related to the WTO member countries (Article 58).

Basically, national treatment is granted for works, performances, phonograms, and broadcasting related to WTO member countries, but there is no obligation under the agreement concerning the right to demand secondary use fees for commercial phonograms of performers and phonogram producers, so it was decided not to recognize rights concerning those of WTO member countries (related to Article 95; those of member countries of the Convention for the Protection of Phonograms,etc. are protected not by national treatment but by reciprocity).

In order to protect the interests of phonogram re-pressers and maintain economic order, Article 121bis prohibits with penal provisions the unauthorized reproduction, distribution, or possession for the purpose of distribution of foreign master disc commercial phonograms not protected by related rights, and supplements related rights. Previously, the phonograms re-pressed abroad to which this Article applied were those of phonogram producers of signatory countries to the Convention for the Protection of Phonograms,etc. or the Phonograms Convention, but this time, those of phonograms producers of WTO member countries were added.

Previously, the right to reproduce phonograms under the Phonograms Convention was limited to reproduction for the purpose of distribution, but at the time of the partial revision of 1992, a right of reproduction without this restriction was granted. However, in consideration of the formation of an orderly system of use within the country, Article 15bis of the supplementary provisions was included as a transitiory measure at the time of this revision, providing that this right did not extend to cases in which phonograms were produced exclusively for the purpose of broadcasting or cable broadcasting. The TRIPS Agreement grants a right of reproduction not limited to the purpose of distribution, and if this supplementary provision were maintained, this would apply to only a few countries bearing the obligation of protection only under the Phonograms Convention, making these supplementary provisions essentially unnecessary. Therefore, at this time it was decided to repeal this provision.

Article 14 paragraph 6 of the TRIPS Agreement provides, "The provisions of Article 18 of the Berne Convention of 1971 shall apply correspondingly to record-related performers and record producers." This imposes the obligation to protect them retroactively with respect to author proximity rights as well. As to how the retroactivity should work, Article 18 paragraph 3 of the Berne Convention states, "The application of this principle shall be subject to any provisions contained in special convention to that effect existing or to be concluded between countries of the Union. In the absence of such provisions,the respective countries shall determine,each in so far as it is concerned, the conditions of application of this principle." In the case of Japan, protection begins on or after the date on which the present Copyright Law went into effect (January 1, 1971), and the relevant provisions have been adjusted. Under Japan's Copyright Law, related rights are protected beginning at the time at which the present law went into effect (January 1, 1971) (Article 2 paragraph 3 of the original supplementary provisions), and it is necessary to provide that performances, etc. related to WTO member countries be subject to the application of this provision. Previously, in view of the principle of nonretroactivity in conventions concerning existing related rights, performances, etc. in foreign countries that took place after accession to a convention were protected by measures in the supplementary provisions of each revised law, and so by the supplementary provisions of this revised law it was provided that these original supplementary provisions would be applied (paragraphs 2 to 5 of supplementary provisions).

Previously, it had been decided that provisions concerning related rights would not apply to performances, phonograms, and broadcasting prior to the enforcement of the Copyright Law (January 1, 1971), but this was modified to provide that for performances, etc. with regard to Japan and WTO member countries, the provisions concerning related rights would apply retroactively to performances, etc. up to 50 years earlier. With regard to phorograms made before joining the TRIPS Agreement, in the course of drawing up the TRIPS Agreement it had been internationally understood that the scope of retroactivity for those related to the rights of performers and phonograms producers would be left to the reasonable discretion of each member country. Thus, as in 9. above, Japan decided to limit protection under ralated rights to those existing on or after the time of enforcement of the present Copyright Law (January 1, 1971), when the ralated rights system was introduced in Japan. Thereafter, however, countries that protect performances, etc. carried out up to 50 years earlier came to constitute a large number of the advanced countries. A situation also arose in which suits were filed in the WTO by the United States and the EC alleging that Japan's measures described in 9. above were a violation of the TRIPS Agreement and that Japan was also obligated to protect phonograms issued up to 50 years earlier. Based on these circumstances, although Japan's interpretation of the TRIPS Agreement did not change, it was decided to protect performances, etc. related to Japan and WTO member countries carried out up to 50 years earlier based on a policy of seeking harmony with other advanced countries. Article 2 paragraph 3 of the original supplementary provisions prior to the revision had prescribed that provisions concerning ralated rights would not apply to performances, phonograms, and broadcasting prior to enforcement of the present law (prior to January 1, 1971). However this revision deleted Article 2 paragraph 3 of the original supplementary provisions and provided for the protection of related rights also for performances, etc. carried out up to 50 years earlier.

At one time, even internationally,the protection period for photograph works began when they were made public, and because many photographic works lacked a label giving the name of the author when they were made public, when the present law was enacted it was decided to set the protection period to 50 years from publication, rather than beginning the count at the author's death. Internationally, however, the number of countries beginning the count at the author's death had gradually increased. And in the new draft treaty being studied by the World Industrial Property Organization (WIPO), the direction being taken was to set the protection period for photographs to 50 years after the death of the author. Under these circumstances, it was decided to extend the protection period to 50 years after the death of the author, the same as for general works.

Following the system for patent and other intellectual property, it was decided that in suits concerning copyright and other infringements, upon application by the party or parties involved the court would be able to order the parties to submit the documents needed to calculate the damages caused by the act of infringement. Also, the maximum fine for a copyright infringement, etc. was raised from the present "not more than 1 million yen" to "not more than 3 million yen," among other measures.

"Broadcast rights" for radio and "cable transmission rights" for wire have long been established as authors' rights regarding the use of an author's work in a transmission system. But the advancement of information communication technology promises to bring about an increasing fusion of broadcasting and communication, leading to the concept that rather than classifying the rights of authors under the copyright system into wireless and wired, it would be more in keeping with reality to establish rights that unify the two. Hence, on this occasion, it was decided to newly reconstitute a "right of public transmission" (Article 23, Article 2 paragraph 1 item 7bis). This right of public transmission, which includes both wireless and wired transmission and all broadcasting modes and on-demand modes, generally comes into play when a work is transmitted to the public.

Article 8 of the WIPO Copyright Treaty states, "authors of literary and artistic works shall enjoy the exclusive right of authorizing any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access these works from a place and at a time individually chosen by them" (for performers and record producers, Article 10 and Article 14 of the WIPO Performance and Phonograms Treaty apply). That is, in on-demand transmission it is necessary to enable regulation not only of the act of transmitting the work, but also the acts of the preparatory stages. Concerning the right of public transmission, Article 23 states, "In the case of automatic public transmission (the interactive transmission), this includes making transmittable of his work," thus bringing the right of public transmission into play in the stages preparatory to transmission (Article 92bis for performers, Article 96bis for phonogram producers). Thus, based on treaty provisions, Japan decided to grant the right of making transmittable to authors, performers, and phonogram producers. Except in such cases as a live broadcast of a concert via the Internet, in many cases the right of reproduction is thought to be applicable to acts of the stages of preparation for transmission, in a structure in which overlapping divisible right of copyrights come into play. If the treaty had left the method of regulating acts of the transmission preparation stage to the judgment of each country, what types of measures would have been advisable? From the standpoint of the legal system, regulation of the preparatory stages of transmission involves no use yet of the work itself, so rather than granting an exclusive monopoly right, it is thought that perhaps it would be more appropriate legislatively to make use of a right to petition for injunction, with a system of deemed infringement for greater deterrent potential, or to implement regulation by the new establishment of special penal provisions such as a crime of preparation of a work for transmission.

Cases in which the cable transmission of a work takes place within the same premises have heretofore been treated as outside the scope of transmission rights, because they were thought of as an act best understood as involving performance rights or presentation rights. However, as one mode of network use by software through the development of local area networks (LANs), a mode of use has arisen in which, within the same premises, computer programs are sent from a host computer to the CPU memory of terminal computers, where they are temporarily stored and used. Such uses greatly affect program sales, and as long as the matter is handled by contract, such as a site license contract, there is no problem. But there have been calls for measures under copyright law to deal with network use in fields not covered by contracts. For such program uses, if temporary storage in a CPU memory involves the right of reproduction under copyright law, this could be dealt with by the right of reproduction, but in what types of cases should the right known as the right of reproduction come into play for such acts of temporary storage in digital form? This question requires further study. For the present, measures need to be taken that focus on the act of transmission. Thus, this revision extended the right of public transmission to "cable transmission to the public within the same premises," but limited it to computer programs. With regard to general works other than computer programs, it has been decided to study the matter further in the future, based on modes of use.

12. Regulation of acts to circumvent technical measures, etc. (revision of 1999)

Article 120bis, which was newly added as a measure to regulate the circumvention of technical measures (defined in Article 2 paragraph 1 item 20), imposes criminal penalties on a person who "assigns" or "rents" to the public, "manufactures," "imports," or "possesses" for the purpose of assigning or renting to the public, or "makes available to the public" a device or program reproduction whose sole function is to circumvent a technical measure, or "publicly transmits" such a program or "puts it into transmittable form." The same penalties also apply to a "person who as a business circumvents technical measures" upon request from the public. Also, the provisions of Article 30 do not apply, and it is not allowed, if one knowingly performs reproduction that is made possible by circumventing a technical measure, even if the reproduction is carried out for the purpose of private use. A person who performs such reproduction bears civil liability as a person who has infringed a copyright, but is excluded from criminal liability (Article 119). Here, "circumvention of a technical measure" means making possible an act which is prevented by the technical measure (for example, making it possible to make copies) by removing or modifying signals used by the technical measures, or causing the obstacle not to occur that would occur as a result of the act deterred by the technical measure (for example, causing the image produced by reproduction not to be scrambled).

Under the newly added Article 113 paragraph 3, the act of intentionally "removing" or "altering" "rights management" information (defined in Article 2 paragraph 1 item 21) or of "intentionally adding false information" as right management information is deemed to be an infringement of copyright, etc. The same applies to the act of knowingly "distributing," "importing" or "possessing" for the purpose of distribution a reproduction of a work or performance, etc. made by thus removing, etc. the right management information, or knowingly "publicly transmitting" or "making transmittable" such a work or performance, etc. Also, a criminal penalty is imposed on a person who, for a profit-making purpose, commits an act deemed to be an infringement of rights under the provisions of Article 113 paragraph 3 (Article 120bis item 3)

The WIPO Copyright Treaty (Article 6) and the WIPO Performance and Phonogram Treaty (Articles 8 and 12) provide that rights concerning transfer must be granted with respect to works, audio performances, and phonograms. As rights concerning transfer, Japan's former Copyright Law recognized the right of distribution, which regulated the lending and transfer of movie works, but with respect to other works, it did no more than adopt the measure of deeming the distribution of pirated editions to be an infringement. This time, from the standpoint of seeking international harmonization in the copyright system and based on the fact that the act of transfering reproductions, etc. of works, etc. is one means of exploiting a work, it was decided to recognize a "right of transfer" as the right of an author, etc. (Article 26bis, Article 95bis, Article 97bis). But the first sale doctrine has been introduced. And from the standpoint of safety of transactions, it was decided that the right of transfer would not extend to a person who made a transfer with good intent and without negligence (Article 113bis).

Heretofore, Japan's Copyright Law recognized right of cinematographic presentation only with respect to movie works, not with respect to other works. Today, a wide variety of image presentation technologies have been developed, with not only moving pictures but such works as photographs and stills of art, etc. as well as works, etc. shown by figures and lettering being shown on a screen. This has brought to the fore the problem of striking a balance between the protection of movie works and other works. Based on the fact that Article 8 of the WIPO Copyright Treaty provides a "right of communication to the public" for works in general (a right recognized for all transmission to the public of works by wired or wireless methods), the scope of the right of presentation was expanded from movie works to all works (Article 22bis).

Under Japan's old Copyright Law, the replay of audio recordings could be freely used if their origin was made clear, but when the present Copyright Law was enacted in 1970, a study was made on the repeal of this measures. In light of the state of Japanese society, however, in which music is used in every nook and cranny of society, it would have too great an effect to suddenly extend rights to all replays of audio recordings. Thus, as a policy matter, Article 14 of the supplementary provisions was provided as a matter of policy judgment; the right of performance was deemed to extend to broadcasting and other public transmission and to music coffee shops and other institutions where the use of audio recordings was a central part of the business, while others were left unrestricted. A consensus has emerged in Japan among those involved in the approximately 30 years since then, and this time this provision was repealed.

Looking back on the history of the copyright system in Japan, we find, as described above, that there have been many revisions of the law to keep up with technical developments.
When various new creations have appeared on the scene such as photographs, movies, computer programs, and databases, appropriate forms of protection have been sought to suit the nature of the new technology, and efforts have been made to protect authors in the face of new modes of transmission, such as radio and television broadcasting and on-demand transmission, as well as new modes of distribution of works, such as record rental. Measures have also been taken to bring the level of protection up to nearly the same level for all works in general, such as by extending the protection period for related rights and changing the starting date for calculating the protection period for photographic works.

This series of revisions has worked in the direction of strengthening the rights of creators, and as a basic direction this is appropriate for promoting cultural creative activities and securing the proper interests of creators.
However, looking, for example, at the extension of the protection period, the trend in Western countries has been to extend the period from 50 years to 70 years after the author's death. And in the TRIPS Agreement, suddenly we find the principle of retroactivity being introduced in the field of related rights, where formerly the principle of nonretroactivity had been adopted. How can such revisions be reasonably explained? Of course, it is impossible to clearly prove what period of years is best for the protection period or whether retroactivity or nonretroactivity is more appropriate as a legal system. Ultimately, these are matters that must be treated as a "policy decision." But if an orderly system for the use of works, etc. is formed based solely on the wishes of rightholders who are influential in policy decision-making and specified industries that administer rights, then the mission of the copyright system as the basic law for promoting culture may go unfulfilled. A rational explanation for policy decisions is always called for.

For example, the private audio and video recording compensation payment system newly extends rights to the realm of the private use of works. If this can be clearly evaluated as affecting the interests of rightholders, then it is reasonable to extend rights even to the area of private use. But, for example, Japan has adopted legislation calling for compensation to be paid for private video recording of television broadcasts (mainly for the purpose of viewing programs at a later time) while the United States has adopted legislation in which such recording is unrestricted. This is understood to be due to different policy decisions taken by different countries, rather than due to differences in their mode of exploiting works or their historical development, as seen in the differences in their previous legal systems. It is not immediately clear which legal system is better, but in the future we can expect continued technical progress that will bring about a fusion between home electronic products and computers and will transform the modes of use of works in the private field. We will need to give careful consideration to how wide a scope we should give to rights, based on what types of concepts.
In order for the copyright system to function as legislation that protects authors, it must be understood and supported by the people, based on their explicit and implicit consensus. What is called for are policy decisions that take into consideration the "silent consumer" who ultimately bears the cost and enjoys the culture. Surely it is based on such policy decisions that the copyright system can develop as the basic law for creating and fostering culture, regardless of how technology may change.