Toward the establishment of the Rule for the exploitation of the copyrighted works in the global network era

The creation and exploitation of works is closely associated with the development of culture and the promotion of industry, which is why it is both necessary and inevitable that works will be exploited beyond national borders, and why much effort has been expended to protect works in a spirit of international harmony, including institution of the Berne Convention. Today the development and popularization of the Internet and satellite broadcasting has resulted in a spectacular increase in the exploitation of works across borders without the intermediation of tangible objects such as books or CDs. Therefore it has become an important issue in the copyright system to consider which country's copyright law applies; that is, to determine which law will govern.
Under the Berne Convention, which adopts both the principle of national treatment and the principle of territorial jurisdiction, the copyright law of the place where the work is exploited applies. Thus, if an act of unauthorized reproduction takes place, rights are asserted based on the copyright law of the place where the work is reproduced. But when it comes to determining where the act of using a work takes place when a work is transmitted across national borders via wireless or cable without the intermediation of a tangible object as there would be in an act of reproduction, it has traditionally come to be held that the governing law is the copyright law of the place where the transmission originates, based in part on the fact that the act of the person who transmits the work actually takes place where the transmission originates.
The Copyright Law of Japan is similarly understood to basically adopt the idea that the applicable law is the law of the country where the transmission originates. For example, the interim study report of the Copyright Council's Multimedia Subcommittee Working Group, released in February 1995, states the following:

"Regarding cable or wireless transmission across national borders for the purpose of direct reception by the public outside the country, it would not be proper to hold that the rights of an author, etc. extend to the simple act of reception in the country where the transmission is received, so it is considered proper and realistic to recognize the rights in the country where the transmission originates. With regard to what is encompassed by "the public" under the present Copyright Law, there is no explicit restriction limiting this to the public in Japan. Furthermore the intention of the Copyright Law would appear to be that even if a transmission is exclusively intended for reception by the public outside the country, as long as the place where the transmission originates is within Japan, it is considered that it must be interpreted that the rights of the author, etc. apply. However it is noted thet the opinion has been expressed that it would be appropriate to give further study to whether it is necessary to take measures such as [A] to make this clear.

Moreover, because it is felt that the protection of authors, etc. concerning such broadcasting and transmission across national borders cannot be made effective without having an international framework in place, encouragement of further study in a WIPO forum is called for.
Also, the protection of the rights of authors, etc. concerning the subsequent exploitation of works, etc. received outside the country must await proper handling by the copyright system of foreign countries, and further expansion of the member countries of the Berne Convention and other existing conventions is expected. In particular, since fiscal 1993, Japan's Agency for Cultural Affairs, with the cooperation of WIPO, has been working on improving the copyright system in the countries of Asia, and further work to address these issues is called for."
Since the publication of this report, a consensus has not yet been reached concerning what measures to devise to deal with this problem. But present conditions expand the possibilities for exploiting works by circumventing the law, such as by exploiting a copyright haven such as the Internet to transmit to the public in convention signatory countries from a server set up in a non-signatory country. If, in the country where the transmission is received, it is retransmitted to the public or an act of reproduction is carried out (other than an authorized type of reproduction, such as reproduction for personal use), then the copyright law of the place where this is done becomes the applicable law and such acts can be regulated, although applying the law is difficult if we have nothing more than the reception of a transmission. Furthermore if the copyright has been assigned piecemeal, country by country, there also arises what is known as the problem of market partitioning by rights; that is, which country's rightholder's consent must be obtained for the transmission of a work, or the distribution of its reproductions, across a national border.
What is required is consideration from a new perspective of what the content and composition of transmission system rights should be, taking into account the era of the global network, which will continue to develop further. This paper clarifies the relationships between copyright legislation and private international law, surveys the course of discussion thus far concerning the applicable laws governing satellite broadcasting, and considers the problems, as well as the possibility of reasonable enforcement of legislation, if the law of the country where transmission originates is taken as the law that governs the distribution of works on the Internet.

(1) Private international law and Article 11 of the Law concerning Application of Laws in General

Heretofore, all pirated books and recordings, computer programs, and art forgeries have been imported and exported in the fixed form of tangible objects. Thus, when a rightholder made a legal assertion of copyright infringement, it was possible to decide relatively clearly which country's copyright law should govern by considering which country's legal territory was the "place" in which the reproductions actually existed and were being distributed, such as the place where a pirate edition was produced or distributed.
In recent years, however, there has been a dramatic quantitative increase in the exploitation of works across national borders in non-physical form via the Internet and satellite broadcasting, without the mediation of material objects. With the rapid development of a wide variety of methods to exploit works, various approaches have been put forth concerning the applicable law for dealing with these cross-border legal issues.

Generally, private international law regulates legal relationships between private persons over national borders. That is to say, private-law relationships that include some form of foreign element are regulated. This private international law does not in itself regulate any specific legal content, but rather prescribes rules for determining which country's law will apply in international private-law relationships and what types of legal relationships are included within the scope of applicability of a given law (indirect regulatory nature of private international law).
Private international law is also referred to as conflict of laws (although the two terms are not exact synonyms). In Japan there is no law bearing the title "Private International Law"; rather, rules governing private international law are laid down in the law known as the Law concerning Application of Laws in General (Law No. 10 of 1898).
The Law concerning Application of Laws in General provides that "The intentions of the parties shall determine which country's laws shall govern the coming into effect and validity of legal acts," reflecting the principle of freedom of contract in substantive law (Civil Code, etc.), and private international law also adopts the principle of autonomy of the parties concerning obligation contracts.

Article 11, paragraph 1 of the law provides that "The coming into effect and validity of claims due to management of affairs without mandate, unjust enrichment, or tort shall be according to the law of the place where the facts that are their cause arise," adopting for torts the "principle of territorial jurisdiction."
Many foreign countries adopt the same system, because, it is thought, it has come to be considered proper, from the standpoints of the perpetrator and the injured party in an unlawful act, to apply the law of the place where the act occurs in order to be able to predict the legal liability and injury caused by the act, and because, in light of the public function of maintaining legal order in society in the justice system, it is considered appropriate to apply the law of the place where the act occurs, regardless of the nationality of the parties. ^[1]
Recently, however, the concept of uniformly applying this principle of following the law of the place where an unlawful act occurs for all torts has come under criticism. It is argued that perhaps it should be possible to more flexibly determine the applicable law according to the particular case, such as allowing the parties themselves to select which country's law will govern torts, or, if both parties are nationals of the same other country, possibly applying the law of the country to which they belong. ^[2]

The question of how to determine the place where a tort takes place can be answered broadly in two ways: either by taking the place where the injurious act occurs, or by taking the place where the consequence (the injury) arises. The latter approach has generally been adopted.
In recent years, it has also been powerfully argued that the place where the tort occurs should be adopted for unlawful acts that should be handled under the traditional principle of negligence liability, while the place where the consequence arises should be adopted for torts that should be handled under strict liability. ^[3]
Even if this approach is taken, however, it would be appropriate to decide the place of the act flexibly, on a case-by-case basis. For example, with respect to cases in which the place where the tort is committed is remote from the place where its consequences are suffered, for a tort such as invasion of privacy, defamation, or trade libel, the emphasis should be on protecting the injured party rather than on asking where an act such as the preparation of a privacy-invading article took place. Thus in order to more easily provide relief for the rights of the injured party, in many cases it is proper to take the place of the tort to be the place where its consequences arise, which is where the injured party actually suffers invasion of his personal interests, and this is so even in cases in which the principle of negligence liability is followed. ^[4]

The above problem has arisen previously with regard to paper media such as books and magazines. However the Internet and other computer networks have made it easy to commit invasion of privacy or defamation across national borders, indeed on a worldwide scale, and in such cases it would be proper to take the place of the tort to be the place where the damaging information is made available and where the injured party's interests are actually injured (in the case of the Internet, countries throughout the world) rather than the place where the server to which the damaging information is uploaded is located or the place from which the information is transmitted to the server, and to take the applicable law under which the injured party may sue for damages to be the law not only of the injured party's place of residence, but wherever such information is disseminated.
Being fully cognizant of the trend toward flexibility in determining, based on the particulars of the case, the place in which the "act" of infringing rights takes place in general tort law, it is important to be flexible in determining the place where it should be concluded that an act of copyright infringement has taken place.

The general applicable law in tort is as described above, and the principle of applying the law of the place where the tort occurs is adopted in Article 11 of the Law concerning Application of Laws in General. On the other hand, the "principle of territorial jurisdiction" is adopted in treaties that cover copyright and other intellectual property. The thinking behind this seems to be the idea that, in satisfying treaty requirements, the cultural and industrial policies of each country should be the basis for determining under what kind of legislative system to prescribe the method and content of the protection of works, inventions, and other intellectual property, and because the actual practice should be a reflection of such policy choices, the coming into effect and validity of rights, as well as their scope and variation, should be according to the law of the country that recognizes such rights, and the validity of the intellectual property recognized by a country should be limited to the range to which the sovereignty of that country extends. Moreover, in the same way as the principle of the place of the tort in the Law concerning Application of Laws in General referred to above, from the standpoint of coordinating interests between the parties and fostering social order in the place where an act occurs, taking the governing law to be the law of the place of the act is considered to maintain the legal stability of the intellectual property system. Article 5 of the Berne Convention, in addition to prescribing in paragraph 1 the principle of the same treatment as given to a domestic national, prescribes in the third sentence of paragraph 2 that the extent of protection and the means of redress shall be "governed exclusively by the laws of the member country where protection is claimed." It cannot be denied that it is not always clear what the text of this provision means. However, under the principles of affording protection through treatment as a domestic national without any foreign-domestic distinction, following the doctrine of not being subject to any formality, and providing protection independently of whether there is any copyright protection in the country of origin of the work, the extent of protection is exclusively as set forth in the laws of the member country in which protection is demanded, so it is reasonable to conclude that this provision assumes the principle of territorial jurisdiction. That is, with regard to the applicable law governing copyright under the Berne Convention, it is considered that the copyright law of the country that has sovereignty in the place where the work is actually exploited should be applied. * Berne Convention, Article 5 [principle of protection] (1) Authors shall enjoy, in respect of works for which they are protected under this Convention, in countries of the Union other than the country of origin, the rights which their respective laws do now or may hereafter grant to their nationals, as well as the rights specially granted by this Convention. (2) The enjoyment and the exercise of these rights shall not be subject to any formality; such enjoyment and such exercise shall be independent of the existence of protection in the country of origin of the work. Consequently, apart from the provisions of this Convention, the extent of protection, as well as the means of redress afforded to the author to protect his rights, shall be governed exclusively by the laws of the country where protection is claimed. An unlawful act due to a copyright infringement means to perform without consent an act of exploitation of a work covered under the exclusive right of the rightholder, and even if one follows the doctrine of applying the law of the place where the unlawful act occurs, which is referred to in Article 11 of the Law concerning Application of Laws in General, it is considered that the result will be the same as if one were to apply the Convention's principle of territorial jurisdiction. With regard to the relationship between Article 5 of the Berne Convention and Article 11 of the Law concerning Application of Laws in General, as stated above, territoriality is adopted in the Convention, and it is a principle under the Convention that the copyright law of the country having sovereignty over the place where the work is exploited is applied as the governing law. It is therefore considered that this can be settled without again resorting to Article 11 of the Law concerning Application of Laws in General. Of course, Article 11 of the Law concerning Application of Laws in General is not completely irrelevant to the legal issues relating to copyright. For example, under the provisions of Article 7 of the Law concerning Application of Laws in General, the principle of autonomy of the parties is applied with regard to deciding which law will govern the content of contracts concerning copyright between parties. On September 5, 1997, the Tokyo District Court handed down a decision in a case in which a plaintiff claiming to have been assigned works of the famous Spanish painter Salvador Dali sued the Asahi Shimbun newspaper, which had produced a catalog containing works that were to appear in an exhibition of Dali works it was sponsoring, and Daimaru, which provided the exhibition hall and sold the catalog. The plaintiff claimed copyright infringement and demanded that reproduction and distribution of the catalog be prohibited and that damages be paid. A major point of contention was whether the plaintiff held the copyright to the Dali works. That is, was the contract which had been concluded between the plaintiff and Dali while the latter was still alive one in which the copyright to the Dali works was assigned to the plaintiff for the period set forth in the contract, or was it rather one that merely entrusted to the plaintiff the management of the copyright to the Dali works? Concerning the applicable law, the court stated in its decision that "The right exercised in this case by the plaintiff is a copyright under the Copyright Law of Japan, but this right can be assigned or otherwise disposed of while prescribing the law of another country as the governing law, and the provision in Article 10 of this contract that the laws of Spain shall govern makes it clear that the parties to the contract agreed that this contract shall be governed by the laws of Spain. Moreover, because, as stated above, the supplementary contract merely supplements this main contract, under Article 7 paragraph 1 of the Law concerning Application of Laws in General, the governing law for the contract and the supplementary contract is the law of Spain."

Article 5 paragraph 2 of the Berne Convention could also be understood to provide that, apart from what is set forth in the Convention, domestic laws in each country can prescribe the nature of the protection of copyright and the means of redress for their violation, including even the determination of the governing law. Taking this view, the principle of national treatment that is set forth in Article 5 paragraph 1 of the Convention means that each country prescribes the governing law for copyright, and because copyright are protected in each country regardless of the nationality of the author, with equal treatment given to domestic and foreign nationals, this amounts to prescribing as the applicable law the law of the place where the work is exploited. Even with this approach, the actual result is the same, since the Berne Convention prescribes the principle of national treatment in Article 5 paragraph 1 and the principle of territorial jurisdiction in Article 5 paragraph 2. Furthermore the understanding that protection must be provided with no domestic-foreign discrimination under the copyright law of the country having sovereignty over the land where the work is exploited is considered consonant with the intent under which the treaty was enacted; that is, to respect the independence of each country's cultural and industrial policies and to foster international harmony. There is also a view that takes "the laws of the country where protection is claimed" in Article 5 paragraph 2 of the Convention to mean "the laws of the country where the court in which a suit is filed is located," but it is not always unambiguously clear where the place of the court in which a suit is filed is or which country's courts have jurisdiction over international cases, and it cannot be denied that adopting this interpretation would entail legal ambiguity. [5] Moreover, if we interpret "the laws of the country where the court in which a suit is filed is located" to also encompass private international law, then because the private international law of each country usually adopts the doctrine of applying the laws of the place where the tort occurs, the conclusion will be the same, and if so, then it hardly seems necessary to develop such an interpretation any further. If we take the plain meaning of the Convention's wording "governed by the laws of the country where protection is claimed," it means "the laws of the place of the court where the suit is initiated and protection is demanded when a legal dispute arises concerning copyright." In other words, the understanding that the Berne Convention adopts the principle of "following the law of the place of the court in which a suit is filed," if taken in the dimension simply of the wording of its provisions, may be an interpretation that is faithful to the wording of the convention. However, it is difficult to find any rational reason why, in addition to the principle of national treatment, it would be necessary for the Berne Convention to contain a provision that the laws of the country where the court in which a suit is filed is located shall govern. Moreover, although the usual result may actually be the same as if the principle of territorial jurisdiction were followed, regardless of the specific provisions in the private international law or conflict of laws in each country, in the norms of treaties, both the holder and the exploiter of a copyright would be placed in a position of legal unclarity and instability by a provision that protection shall be provided under the laws of the country where the court in which a suit is filed is located.

(1) Exploitation of copyright across national borders via satellite broadcasting

Works are distributed across national borders when broadcasting is carried out directly to the public from a broadcasting satellite or communications satellite.
No one would deny that satellite broadcasting, in which works are transmitted for the purpose of their direct reception by the public, qualifies as "broadcasting" under the Berne Convention, and that rights concerning broadcasting cover the exploitation of works by satellite broadcasting both under the Copyright Law of Japan and the copyright laws of other countries.
The question is, given that satellite broadcasting can be received in multiple countries, which country's copyright law should govern: that of the country in which the broadcast originates, or that of the country in which the broadcast is received?

In conventional terrestrial broadcasting, it is sometimes relatively easy to receive broadcast signals from neighboring countries, especially in Europe.
If, for example, a broadcaster in country A broadcasts to the residents of the same country but the signals happen to be received also by residents of neighboring country B, the question arises as to whether the "spillover" signal in country B should be dealt with under the copyright law of country B rather than being dealt with only under the copyright law of country A. But this problem is thought to be less important than in the case of satellite broadcasting.

However, satellite broadcasting makes it possible to broadcast to residents of many countries in a wider area, and to transmit clearer audio and video signals. And because the extent of the spillover signal is different, considering which law will govern in deciding how to handle rights is a problem with a higher degree of seriousness. ^[6]
It has heretofore been thought that the broadcasting of works should be governed by the copyright law of the country in which the broadcast originates. In the 1948 Brussels conference to revise the Berne Convention, the thinking was likewise that the laws of the country from which the transmission is made should govern cases in which signals are received in another country.
In other words, broadcasting means the act of transmitting works for the purpose of their direct reception by the public, and what can be judged to be some form of act of human is the act of emitting a program-carrying signal. It seems to have been concluded that applying the laws of the country where the broadcast originates is consistent with the principle of territorial jurisdiction.

Opposed to this approach is the "Bogsch theory" which was developed from 1985 to 1986 and holds that the law of the country where the broadcast is received should be applied.
The Bogsch theory considers the place where "communication" to the public takes place to be more important than the broadcasting act of "emitting signals."
At a conference of the Group of Experts on the Copyright Aspects of Direct Broadcasting by Satellite jointly sponsored by WIPO and UNESCO and held in Paris from March 18-22, 1985, Mr. Bogsch, who was head of the WIPO secretariat, presented the view that because the provisions of Article 11 bis (broadcast rights, etc.) of the Berne Convention make use of the concept of "communication to the public" rather than the concept of "emitting signals," the act of broadcasting should be considered as being performed in the place where transmission to the public takes place, and if it is performed via a broadcasting satellite, then transmission to the public takes place in all the countries covered by the satellite's "footprint" (the region reached by its signal), so rights are in effect according to the provisions of the copyright laws of the respective countries.

Later, at a meeting of the WIPO/UNESCO Committee of Governmental Experts on Audiovisual Works and Phonograms held in Paris from June 2-6, 1986, the thinking was that satellite broadcasting "takes place in both" the country where the program-carrying signal originates and in the countries covered by the "footprint," and the view was expressed that if the nature of the protection differs, the highest level of protection should be applied.

Such a theory of following the law of the country where a broadcast is received is favorable to the protection of the rightholder, but various problems have been pointed out: it is difficult to clearly prescribe exactly where a broadcasting satellite's footprint extends, it is difficult for a broadcaster to clearly handle rights when broadcasting a work, and if rights are assigned on a country-by-country basis, then if permission for a broadcast is not obtained in even one country in the satellite's footprint, no broadcast may be made, even if permission for the broadcast is obtained in all the other countries.

The matter was further discussed in various subsequent settings, but ultimately the Bogsch theory was not adopted. ^[7]
In the EC Council directive of September 27, 1993 on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission (93/83/EEC), it was decided to adopt the "doctrine of applying the laws of the country in which the broadcast originates" in Article 1 paragraph 2(b).
As a way of interpreting "the place of the act," it was held that "the act of communication to the public by satellite" takes place in the member country in which the program-carrying signal is first introduced in a series of communication paths. It was also decided that in cases in which the land where a program-carrying signal is introduced to a series of communication paths is in a member country of the Union (if there is no appropriate protection in said country), if there appears to be an uplink relay station in a member country, then "the act of communication to the public by satellite" takes place in said member country. If the uplink relay station is in a non-member country, then if the broadcast organization to which the satellite broadcast is entrusted is established in a member country, the member country in which the broadcast organization is based is taken to be the place of the act.

At the same time, Article 3 paragraph 1 of this directive states that "no compulsory license system is adopted" for satellite broadcasting; thus, it has been decided that the only way to obtain license for communication of a work to the public by satellite is by contract between the parties.

(2) Exploitation of works across national borders on the Internet

With regard to the uploading and transmission of works on the Internet, if the act of transmitting information to the server takes place within Japan, the server on which this information is stored is within Japan, and Japan is included in the destinations to which the information is transmitted, then all these acts may be considered to be within the framework of the Copyright Law of Japan.

First, the act of storing information on a server within Japan is governed by the right of reproduction referred to in Article 21 of the Copyright Law, and since normally it is in a form that can simultaneously be transmitted, it is governed by the right of public transmission referred to in Article 23. That is, Article 23 prescribes that the right of public transmission includes "the right of making transmittable" in the case of automatic public transmission," and if public transmission (Article 2 paragraph 1 item 7 bis) is performed automatically upon demand from the public by automatic public transmission (Article 2 paragraph 1 item 9 quater), in other words, by any means other than broadcasting or cable broadcasting, "making transmittable " (Article 2 paragraph 1 item 9 quinquies) is usually considered to be a mode of act to which the right of reproduction applies, except in special cases in which there is no intervening fixed continuous accumulated product (fixed form), as in the live relaying of a concert over the Internet. (In cases where the intent is to establish a right concerning "making transmittable," such as in transmission over the Internet, the work is transmitted in response to individual requests from users and it is difficult to impose restrictions on when or where the work is transmitted, so that the validity of rights is said to be ensured by seizing upon the time of the preparatory stage for the transmission and putting rights into effect then. But in real-time Internet broadcasting it is usual for many users to receive the work simultaneously, so it seems to be not always difficult to assert rights by capturing acts of unauthorized transmission to the public. In Internet broadcasting, the information is not transmitted to the end user until there is an individual request, which makes the physical system different from the form in which the same information is one-sidedly transmitted to end users simultaneously, as happens in conventional broadcasting and cable broadcasting, but there seems to be no difference between the two in how difficult it would be to ensure the practical effect of rights.)

The right of public transmission further comes into play at the stage in which a work is actually transmitted in response to user requests.

Then what happens when all or part of such an act takes place in another member country of the Convention or in a non-member country? We consider this question with the following model.

Country A: Work X is transmitted from _a_'s terminal to a server of _b_ (Internet provider, computer communications carrier, etc.), who is located in country B.
Country B: Work X is stored on _b_'s server; work X is transmitted from _b_'s server to _c_'s terminal in country C via the Internet, etc. Country C: _c_ causes the transmission of work X stored on a server of _b_ in country B via the Internet, etc., receives it on his own terminal, displays it on a display, or downloads it or makes a hard copy of it.

The right of reproduction comes into play if some form of duplication is carried out in the process in which a work X is transmitted to a server of _b_ in country B at a terminal of _a_ in country A (which is stipulated to be a member country of the Convention). For example, if, at _a_, the work of another is reproduced without consent on a floppy disk or hard disk, this is not permitted as reproduction for personal use (Article 30) if the reproduction is performed for the purpose of transmission to _b_'s server. If, on the other hand, it is assumed that country B is a non-member country of the Convention, it may perhaps be argued that since transmission from country B is not illegal, the reproduction at _a_ as an act preparatory thereto would not be essentially illegal. Even in such a case, however, the assertion of rights with respect to _a_'s act of reproduction is understood to be a rational way to secure the protection of the law for the rightholder at the water's edge, without being an abuse of rights. Normally, if a work X is merely transmitted point-to-point from country A to _b_'s server in country B (without any accompanying reproduction), it is not judged to be a transmission to the public within country A. Rights are therefore generally understood not to come into play even if the copyright law of country A is assumed to have been modified by copyright legislation (hereafter referred to as "rights of public transmission") that makes it possible to regulate the act of transmission of works by cable under rights such as the right of public transmission or the right of cable transmission as in Japan, or under an expanded interpretation of the right of distribution. Moreover, if country B is not a Convention signatory, it is difficult to regulate the act of reproduction if the work is stored on _b_'s server located there. This being the case, if, say, a musical work X is transmitted over the Internet to the public from Japan (country A) via a server in non-member country B to destinations within Japan (country C), the rightholder to the music work X will be left without any protection at all. Even if those committing such copyright haven acts might be rare, it cannot be denied that such connivance places cyberspace beyond the effective reach of copyright legislation. How to revise treaties and laws so as to design a system to explicitly regulate such subterfuges is a topic for debate in reform of the system. Meanwhile, however, we need to seek out a theoretical framework to protect the interests of rightholders under the present system. For example, taking such acts by a person who sends out information as an integrated sequence of acts rather than as separate individual acts, the act of transmitting information to _b_'s server set up in country B may, under the conventional classification, be simply communication rather than transmission to the public. If, however, the information takes on the nature of being automatically transmittable to the public of country C (Japan) via the server the moment it is stored on the server, then in terms of copyright law the act of _a_ within country A (Japan) is an act of emission in a process of acts of transmission to the public of country C (Japan), and there is some justification for holding that such an act of transmission, as an act of exploitation of a work covered by the "rights of public transmission" that are established in the copyright law of country A (Japan), is subject to the "rights of public transmission", with the copyright law of country A taken as the governing law. In the case of satellite broadcasting, if a broadcaster in country A transmits to the public of country C via uplink relay facilities not within the territory of country A as well as via satellites located in space, then with regard to the place taken to be where the act of broadcasting takes place, it could be said that the approach is similar to determining the governing law by focusing on the point of emission of the original program-carrying signal. However, in the case of satellite broadcasting, a one-way transmission takes place immediately from the place where the signal originates to the place where it is received regardless of any demand by the end-user viewer, whereas in the case of the Internet, no act of transmission takes place without a demand from the end user, even if the system is one that can transmit to the public the instant the information is stored on the server. Therefore, even if the act of emission from within country A to a server in country B can be construed as a process in a series of public transmission to country C, compared with the case of satellite broadcasting it would be going too far to declare this to be subject to exclusive management under the "rights of public transmission" established by the copyright law of country A. The questions of how the actual transmission system is physically constituted and how the act of transmission is legally understood can each be approached from a different perspective. Even if it is held not to be a one-way transmission to the public, like satellite broadcasting, regardless of any request from the end user, storing a work on a server creates a state where it is highly probable that transmission to the public will take place upon request, so it is useful to include revision of the system in any discussion of the applicability of laws. In this case, one approach would be take the act of storing on a server as transmission to the public in itself and deem it to be an infringement of rights including the right of public transmission. Alternatively even it is not deemed to be an infringement of rights, another approach would be to find it to be subject to a demand for prohibition as an act in the preparatory stage for committing an infringement of rights. In either case, some degree of legal fiction is necessary, and in applying this legal fiction, for the sake of legal stability it is necessary to consider a reasonably limited scope of legal function to ensure that the user of the work is not subjected to unexpected liability for infringement of rights. If country A, where the act of uploading takes place, is not a signatory to the Convention, or it is a signatory but has not established any "rights of public transmission," then there will be no means for regulating acts in country A, and the discussion will have to either focus on the act of emission from _b_'s server in country B or on the act of transmission (communication) to the public carried out in country C.

Basically, if B is a Convention member country, then the right of reproduction (and rights concerning making transmittable) under the copyright law of country B can be taken to apply to the act of storing works on _b_'s server. However, the problem is that we still need to consider which country's copyright law applies if reproductions of a work are created automatically on _b_'s server in country B across national borders by an act of _a_, who is located in country A. That is, if _b_ in country B merely sets up a server and _b_ recognizes and acknowledges _a_'s act, then even if _b_ can be found jointly liable for an unlawful act (or contributory infringement liability under U.S. law) as a joint tort feasor or an aider and abettor, the person who primarily commits the causal act concerning said storing of the work (its reproduction or making transmittable form) is _a_ in country A. In terms of examples of private international law concerning general unlawful acts, the place where the injurious act occurs is country A, and the place where the consequence arises is country B, and as discussed above, various approaches have been put forward besides the traditional view of adopting the law of the place where the consequence arises. Here, _a_'s act within country A is not simply the emission of information but is an act that presupposes the inevitable storing of information on _b_'s server (even if it is set up outside the territory). It could be judged to be an act of exploitation of a work that infringes the right of reproduction under the copyright law of country A or rights concerning making transmittable, and it is thought that it might affect rights by taking the copyright law of country A as the governing law (even if country B is a non-member of the Convention).

If country B is a member country of the Convention and its copyright law includes "rights of public transmission," then those rights are relevant to transmission to the public. Who should be construed to be the legal subject who carries out the act of transmission of a work from _b_'s server? One approach is to focus on the physical act of transmission and say that since signals are being emitted from _b_'s server, the basic party transmitting works is _b_, who is the administrator and operator of the server. Another approach is to focus not on the physical act of transmission but on who, as a legal assessment, is committing the primary unlawful act; in this view, it is _a_ who is the legal subject who is emitting a work to the public on a communication channel, while _b_ merely provides the physical means (_b_ is a distributor, not a publisher). This view seems proper as the way to construe the subject who transmits works under the copyright law, especially if one views Internet service providers as basically merely making available the physical means to send out and receive information to and from members, whether by home page or electronic bulletin board. In either case, the conclusion is that a work is being transmitted to the public, whether individually by _a_ or by a joint unlawful act with _b_. Even if, from the viewpoint of the proper development of the Internet and the smooth distribution of information, it is assumed that _b_ may be in a position to receive a prohibitory demand, _b_'s liability for damages due to copyright infringement and _b_'s criminal liability must be recognized as being limited to cases in which _b_ recognizes and acknowledges _a_'s act. There is also the view that here, "the public" in cases where rights involving transmission to the public come into play means the public that resides in the country, and that a case in which transmission is made only to the public in other countries (especially non-member countries) is not applicable. In the case of the Internet, it is difficult to conceive of cases in which no transmissions are made to the public within the country (i.e., they have no access), but theoretically this possibility must be noted. The content of rights under the copyright law is built up by focusing on the modes of specified acts relating to the exploitation of works. In the case of Japan's right of public transmission, for example, transmission means transmitting by wireless methods or by cable "for the purpose of direct reception by the public" (Article 2 paragraph 1 item 7 bis). If "transmission" is performed domestically for such a purpose, then it must be interpreted that rights come into play even if those who receive the signals are exclusively persons outside the country. Moreover, the text of the law has no element that understands an intent to limit the definition of "the public," which is the subject that receives transmissions, to persons inside the territory of Japan. Even if there is no one who receives and views transmissions, and even if it is assumed that all those who receive transmission of the work and enjoy it are residents outside the territory only, the assessment must still be that an act exists in which rights must be involved, because the party carrying out the act of transmission exploits the work to achieve a certain purpose, whether or not it is a profit-making purpose, and this act of transmission creates a state in which the work can be widely exploited by end users. If country B is not a Convention signatory, or if it is a signatory but has not introduced into its copyright law "rights of public transmission," in considering the situation we need to focus on the act of communication to the public in country C.

If country B is a Convention signatory whose copyright law recognizes "rights including the right of public transmission," an assertion of rights can be made with respect to an infringement of such rights, but if country B is not a Convention signatory, can the author's rights be protected? For example, how should a case be considered in which a music work of country A (Japan) is stored on _b_'s server in country B (which is not a member of the Convention), is received via the Internet, etc. by _c_ in country C (Japan), and its performance is enjoyed or a sound recording is made legally as a reproduction for private use under the provisions of Article 30 of the Copyright Law? This is the typical pattern known as a copyright haven. The only instance in which an act of emission to the public takes place within a non-signatory country (country B) and takes place in Japan (country C), which is a signatory country, is the act of reception by _c_ via the Internet. Unless _c_, who receives the transmission, reproduces it beyond reproduction for private use or other permissible bounds, or retransmits it to the public, rights under the copyright law do not come into effect merely for the act of receiving the transmission. In this case, the act of "transmission of a work to the public" that is held to be subject to exclusive management under the "rights of public transmission" presupposes a series of acts from "emission" of an information communication signal to "communication" to the public, not all of the acts of this process need take place within the same territory, and even if it is assumed that the act of information emission cannot be suppressed because B is a not a Convention signatory, then because the work is communicated to the public within the territory of Japan (country C), the exclusive management of the public transmission right set forth in the copyright law of Japan (country C) could extend to this case, and there could be an approach that holds that it is possible to assert rights against _a_ or _b_, taking the Copyright Law of Japan as the governing law (see 3. below). Moreover, if in such an act of transmission, the transmission, is made on the premise, on the transmitting side, that the receiver will invariably make reproductions on its own terminal, this differs in no essential way from the distribution of reproductions, and one could interpret the legal subject of this act of reproduction on the side of the user to be not the individual person who receives the transmission, but the transmitting person.

(1) Principles of territorial jurisdiction and Emission theory

As discussed above, when considering how to interpret the act of "transmission" and which law should be the governing law when a work is distributed across national borders by means such as satellite broadcasting or the Internet, it is important to have a legal order to adequately protect the rights of authors and ensure the smooth distribution of works across national borders.
Because the concept of the "place of the act" does not have much meaning in cyberspace, one view holds that the governing law should not be determined by "territoriality." However, as long as one does not adopt the principle of jurisdiction by nationality (adopting the principle of jurisdiction by nationality would not be rational for the orderly exploitation of intellectual property), in any case it is difficult to consider this problem apart from the question of where the "act" takes place. What is important, it would seem, is to have a legal regime in which the act of exploitation of works, including transmission to the public, reproduction, and distribution, is understood in conformity with the order of the exploitation of works in cyberspace.

For the exploitation of works on the Internet and in satellite broadcasting, it is both realistic and rational to take as fundamental the application of the principle of territorial jurisdiction in the Berne Convention, in which one must apply the copyright law of the country that has sovereignty over the place where the work is transmitted to the public by cable or wireless as previously; that is, the place where the act of exploitation of the work must be regulated by the exclusive rights prescribed in the copyright law.
The question is what point to focus on in judging the place of the act of exploitation of the work where the right of public transmission, the right of broadcasting, and other rights could be applied, in cases where a work is transmitted across national borders, as in Internet transmission and satellite broadcasting.

The traditional approach has been to take the point where an act of "emission" of an information communication signal takes place to be the place where an act subject to copyright law rights takes place; that is, the place being seemed where a work is exploited.
In the case of transmission system rights, from the above standpoint, the very act of emitting a work for the purpose of its reception by the public seemes to be an act that should be understood to be an act of exploitation of a work, and it seemes not important how, after its transmission, the work is received and enjoyed. This is in some sense the natural approach to take, because the "act" actually carried out by a human being is only the act of emission; the subsequent communication of a signal is no more than a physical state, and the transmitting person performs no act in the place where communication to the public takes place.

As a matter of legislative policy, ensuring both the rights of rightholders and the smooth exploitation of works should be taken into consideration in setting exclusive rights. Considering matters from the standpoint of the location where information is emitted unambiguously clarifies which copyright law is to be applied and makes the trouble-free handling of rights possible. It is considered important as a matter of legislative policy to adopt this approach as a principle.

The traditional doctrine of applying the law of the country where the transmission originates is considered appropriate in terms of clarity of the law to be applied and conciseness of how rights are to be treated, but the problem with this doctrine, as explained above, is that it makes it difficult to prevent acts of exploitation of works such as in copyright havens.
If all countries of the world had approximately comparable levels of copyright law to regulate acts of reproduction and acts of public transmission by wireless or cable, and if mutual protection was fully guaranteed by treaty, copyright havens themselves would become extinct and appropriate protection would be afforded to rightholders even if the doctrine of applying the law of the country where the transmission originates was adopted. For the present, however, we must take the state of copyright legislation in various countries and their membership in conventions as we find it today.
The doctrine of applying the law of the country where the transmission originates has undeniable advantages, but it would not be advisable to mechanically adhere to this approach and ignore situations in which the protection of the author of the work is rendered hollow. We must seek out ways with greater flexibility that can be applied on a case-by-case basis.

(2) Problems with the doctrine of applying the law of the country where the transmission is received

On the other hand, many problems must be solved if we adopt as a principle the approach of taking the state of transmitting signals to be the act of exploitation of a work to which rights apply, such as the right of broadcasting or the right of public transmission.
Apart from cases in which the rightholder and the transmitting person are fully aware from the beginning regarding the countries to which the information will be communicated and rights for all exploitation relating to transmission of the work can be clearly resolved under a contract between the parties, considering, for example, the transmission of information on the Internet, if a work is loaded on a server, then it can be publicly transmitted throughout the world via telephone circuits, making the legal relationships quite complicated for determining the copyright law that governs in each place to which the information is actually communicated.
Moreover, if copyrights are assigned by country and the rightholder in the original country authorizes a broadcast but a rightholder in a neighboring country within the footprint of a satellite broadcast does not, ultimately no broadcast at all can be made, barring some technical measure that would make it impossible for residents of the neighboring country to receive the broadcast. And the possibility of spillover reception in countries outside the originally anticipated footprint places the transmitting person in a quite unstable legal position, which impedes the smooth operation of the broadcasting business.

(3) The search for legal principles to fill in the blank areas in law under the doctrine of Emission theory

In order to ensure trouble-free transmission and exploitation of works on the global network, the basic idea is that the law of the place where the information is emitted should be taken as the applicable law, and rights should be disposed of uniformly under this law.
In cases in which the place from which the information is emitted is a non-member country or in which no exclusive rights have been established relating to said act of transmission and the act of emission cannot be regulated, if the transmitting person avails himself or herself of the opportunity to transmit the work via information emission equipment located in such a place, one should recognize the exercise of rights not as applying to an act of emission of information, but to an act of communication to the public. And with respect to public transmission, in principle the same treatment should be given to a person who transmits without consent from a place where rights apply.

In other words, the communication of the signal once emitted is no more than a physical state, and although there may be no actual act of the transmitting person in the place where it is communicated to the public, as a matter of legal interpretation, an act of exploitation of a work to which the right of public transmission or the right of broadcasting applies is held to be taking place within the country where the signal is received, and the applicable law is the copyright law of the country where the signal is received.
Even if the person who carries out an act of exploitation of a work is in a foreign country, as long as the act of exploitation of the work can be judged to be taking place within the country where the signal is received, it is not a violation of the principle of territoriality to hold that the governing law is the copyright law of the country.
Although the argument cannot always be pursued on the same level, even in determining the place of an unlawful act to which Article 11 of the Law concerning Application of Laws in General applies, in general for unlawful acts such as invasion of privacy as mentioned above, if the place where the injurious act occurs, where the violator is present at the time of the violation, is different from the place where the consequence arises, the place where the consequence arises and where the violator is not present may sometimes be recognized as the place where the unlawful act occurs.

The transmitting person, who is unable to clearly predict which country's law will govern, may be placed in a legally ambiguous position, but it does not seem especially unreasonable to make a person who tries to avoid copyright, or a person who transmits without consent, bear such a risk. If plain and simple application of law is what is desired, it suffices to transmit with consent from a country in which the copyright law of the country where the transmission originates is taken as the governing law, thus avoiding the problems with transmitting from a copyright haven or without consent.

The approaches mentioned above maybe seemed depending on the opportunism, however the act of exploitation of a work in a transmission system can be legally considered as being made up of a series of "acts of exploitation of the work" from emission to communication to the public, and if this series of acts occurs across national borders, it is not always determined logically and inevitably in which place the exploitation of the work is taking place. This is a matter in which the system and the application of the law need taking into consideration the appropriate balance of interests between the rightholder and the user of a work.
Here, as has traditionally been the case, the place where the specific act of the emitting person takes place is the place where the transmission originates, and in view of the present situation in which information can be transmitted on a worldwide scale whether by wireless methods or by cable, simplicity in resolving rights and unambiguity in legal relationships argue in favor of primarily considering the place of the act of emission. On the other hand, in view of the present situation in which it is easy to transmit from a copyright haven by using the Internet or other means, it would actually be irrational not to apply copyright law even though the interests of the rightholder are being improperly harmed. Furthermore since a person who transmits without consent in this way has himself or herself renounced the benefits of the user of the work under the doctrine of adopting the law of the place where the transmission originates as the governing law, it seems reasonable to take the law of the country where the transmission is received as the governing law, taking the public communication of the work in the receiving country as an act of exploitation to which the right of transmission applies.

(4)Coordination between the cross-border distribution of reproductions and the communication of transmission system information

If we consider the case of books, CDs, and the like in which the work is in the fixed form of a tangible object and is distributed (communicated) from the reproduction producer (emitting person) to the end user (receiver of the transmission), those works that are reproduced without consent in another country that is a Convention member or in a non-member country are deemed, upon importation into Japan, to be a copyright infringement and are subject to rights based on the Copyright Law of Japan (see the Copyright Law, Article 113 paragraph 1 item 1 [deeming of infringement by importation for the purpose of distribution]; see also the Customs Tariff Law, articles 21 and 21bis). Rights based on the Copyright Law of Japan also apply, with respect to the distribution or the possession for distribution of objects made by an act infringing copyright by a person who is aware of such infringement (Copyright Law, Article 113 paragraph 1 item 2 [deeming of infringement by distribution or possession with the intent to distribute]).
On the other hand, if a work is reproduced outside the country with the consent of the rightholder, it may be freely imported and distributed within the country.

However, views differ if rights are assigned by country; for example, if a reproduction X produced with the consent of the rightholder of country A is imported into Japan. That is, intellectual property, which includes patent right and trademark right as well as copyright, is protected under the principle of territorial jurisdiction, and even if it may not be a natural consequence of the principle of territorial jurisdiction, the independence of rights in each country is taken as a principle. By applying the principle of the independence of rights literally for works exploited across national borders, there is also a view that deems reproduction X to constitute a copyright infringement because the consent of the rightholder in Japan was not obtained.
This issue of the importation of "genuine goods" is often brought up in discussing the propriety of parallel imports, mainly in the field of industrial property rights, and regardless of any conclusions for patent and trademark, it is necessary to take respective approaches in considering this issue, in accordance with the nature of each system of laws.
Moreover, merely based on the premise that intellectual property is considered to arise independently in each country, it would not be necessarily appropriate to treat the exploitation of works across national borders respectively at each nation. ^[8]

The basic intent of Article 113 paragraph 1 item 1 of the Copyright Law is to suppress the distribution of counterfeit merchandise produced outside the country without the consent of the rightholder in that country.
Reproductions produced outside the country with the consent of the rightholder in that country are genuine, and allowing the rightholder in Japan to regulate the distribution of the reproductions the moment they cross the border would upset the smooth distribution and exploitation of works in international society and must be understood as a consequence not planned by the Copyright Law, whose purpose is the development of culture. ^[9]
The disadvantage incurred by the rightholder in Japan in such a case must be treated in the dimension of a legal problem between the parties to a contract concerning the partitioned assignment of the copyright.
What is essential in the independence of rights is for each country to establish what the rights of authors will be, uninfluenced by the invalidity or extinguishment of rights in the legislation of other countries (reciprocity of the period of protection being another matter), and it is not necessary for legislation to be introduced that requires a license from the rightholder of each country when the exploitation is across the national borders. ^[10]

(5) Adopting the Doctorine of Emission theory plus the theory of exhaustion of rights (transmission without consent of the rightholder of the country of origin of the transmission plus non-exhaustion of rights)

When, as mentioned above, the work is in the fixed form of a tangible object, the arrangement is considered to be such that if at some stage in the "normally expected distribution process" from reproduction to distribution to the public, an opportunity for exercise of rights is given and rights are exercised upstream, then the downstream stage is free, and the exercise of rights downstream is recognized against those who avoided the exercise of rights upstream, regardless of various approaches such as exhaustion of rights, first sale doctrine, or ensuring the unfettered distribution of reproductions.

A transmission cannot be suppressed when it crosses a border and reaches the end user instantaneously, so it is impossible to physically stop the communication within the country, and it can be said that there is the possibility of a more serious threat to the interests of the rightholder than if the work were distributed by means of a tangible object.
Regardless of whether the work is in the fixed form of a tangible object, it ought to be made possible to suppress at the downstream point of communication whatever did not undergo rights clearance at the upstream point of emission, and under this approach to the application of copyright, in the cross-border exploitation of works it is important to shift from legislation covering the distribution of tangible objects to legislation that is appropriate for the era of information communication in cyberspace.
One way of considering such cases is to establish two types of rights as part of a copyright by amendment of the Copyright Law: right that focus on the act of emission as previously, and right that focus on the act of communication, adopting the exhaustion theory, including methods of being deemed to be an infringement. In this approach, we construct a system in which the latter right can be asserted against an act of transmission from outside the country without consent.
However,if consent is not obtained in the place where the emission originates, the act of exploitation of the work (public communication) should be regarded to take place without exhaustion of right in the country where the transmission is received. Therefore it would appear that it is possible to adopt a flexible interpretation, and regulate the act of public communication under the present Copyright Law.

If the rightholder is the same person, and even if it is in some way reasonable that right should be extinguished by consent in a given country, if rights are assigned by country--for example, if something transmitted with the consent of a rightholder of country A is communicated also to the public of country B--then, according to one approach, the right of the rightholder of country B are rendered hollow.
However, as in the approach taken above with the importation of reproductions, it is not necessarily concluded that rights relating to the cross-border distribution of a work could be exercised for each country. In particular, it is suggested that in the enactment and implementation of rights in a transmission system we must strike a balance with the free flow of information on the global network.
It should not be understood that the moment rights are assigned piecemeal by country, they constitute exclusive rights barriers to the exploitation of the work across national borders.
After all, one becomes a rightholder in the awareness of rights that are partitioned piecemeal by country, so the disadvantages that one encounters must be accommodated in the dimension of copyright law and must be handled as problems of a contract concerning an assignment between the parties.

(6) The search for a multidimensional solution

Of course, we still must deal with the same problems in the above approach of deciding the governing law by the emission theory that were raised at the time when the Bogsch theory was developed.
For example, in the case of satellite broadcasting, from the standpoint of the public nature of broadcasting it is permissible to introduce under domestic law a system of compulsory license under treaty. However, if the consent of the rightholder is not obtained, even if a broadcaster in country A wishes to broadcast within the country, and if broadcasting is carried out to recipients in country A by satellite with the acquisition of a compulsory license in neighboring country B, which has a compulsory license system, because the copyright law of country A has no compulsory license system for broadcasting, then we have the problem that if the law of country B, in which the transmission originates, is the governing law, it appears no longer possible to prohibit the broadcast in country A itself by virtue of an exclusive right.

It can, however, be held that the right of broadcasting under the law of country A, where the broadcast is received, is afforded with no extinguishment of rights because the compulsory license is not the "consent" of the rightholder. In addition to that, we should consider ways to prohibit broadcasts to country A that attempt to evade the law, by appropriately invoking compulsory license in country B, based in part on the intent of the proviso in Article 11 bis, paragraph 2, sentence 1 of the Berne Convention ["but these conditions shall apply only in the countries where they have been prescribed"].

In addition, there are specific individual problems entailed by the principle of following the law of the country in which a transmission originates. Multidimensional solutions for these problems would appear to be required, perhaps treating them as problems on the level of determining the overall governing law, or as issues that call for improvements in the domestic law and system of each country based on consultation between the countries involved and the results thereof, or improvements as a diplomatic and commercial problem between states, as seen in the example of the above EC directive, in which compulsory license for satellite broadcasting is not introduced between member countries.

Article 27 paragraph 1 of the Penal Code Enforcement Law provides that the crimes set forth in the Copyright Law shall be regulated according to the examples of Article 3 of the Penal Code (this Article also covers "crimes set forth in the Immigrant Protection Law").
Article 3 of the Penal Code provides that Japanese nationals who commit certain crimes outside Japan are subject to the Penal Code. That is, if a Japanese national commits a crime abroad for which penal provisions are prescribed in the Copyright Law of Japan, he or she is subject to punishment upon his return to Japan, provided it is within the period of limitations.
The crimes listed in this article include arson to an inhabited structure, etc., indecent assault, rape, murder, bodily injury, kidnapping or abduction of a minor, defamation, theft, robbery, fraud, breach of trust, and embezzlement in the conduct of business. It is not clear why the Copyright Law is the only intellectual property that is treated in the same way as these listed crimes.

This appears to be a problem of a different dimension from the principle of territorial jurisdiction under the Berne Convention. However, in his Article-by-Article Commentary on the Copyright Law, newly revised edition (published by the Copyright Research and Information Center), page 598, Moriyuki Kato gives the following explanation as to why a violation of the Copyright Law of Japan that is committed by a Japanese national outside the country is subject to criminal penalty.

"For example, a civil suit cannot be instituted in a country that has no treaty relationship with our country against a party who publishes without permission a work protected by this law or against a party who engages in pirate broadcasting from a ship outside our territory, but when such persons return to Japan, the rightholder can institute a complaint and demand the application of penal provisions.
Actually, careful consideration has been given to whether to delete Article 27 paragraph 1 from the Penal Code Enforcement Law, but in view of the fact that the people concerned are Japanese nationals, it was decided to adopt the position that rights such as copyright, which may be characterized as fundamental to a cultural state, should be respected even in countries where the exploitation of works is not restricted because they are not members of an international convention covering copyright."

The principle of applying the penal code of one's own country when a national of one's own country commits a crime is known as the doctrine of "active personal jurisdiction," while the principle of applying the penal code of one's own country to the criminal when the victim of the crime is a national of one's own country is known as the doctrine of "passive personal jurisdiction." Formerly, Article 3 of the Penal Code adopted the "passive personal jurisdiction," ^[11] but it was revised in 1947 to follow only "active personal jurisdiction." ^[12]
If "passive personal jurisdiction" is adopted, questions arise about the relationship with the principle of territorial jurisdiction under the Berne Convention, whereas in the case of "active personal jurisdiction," as mentioned above, the special public-benefit viewpoint of protecting the culture imposes an obligation to Japanese nationals over and above what the Convention requires, which seems not necessarily to be in conflict with the Convention. But from the viewpoint of international harmony between legal systems, further study is needed concerning such issues as whether guaranteeing "respect for copyright, which are fundamental to a cultural state," by penal provisions outside the framework of the Convention may be characterized as the appropriate legal system for the coming era, and what the practical effect of doing so would be.

In the foregoing, I have expressed my current views concerning what law should govern the exploitation of works across national borders over the Internet and by satellite broadcasting.
This is not only a problem of which governing law to adopt, but also involves the issue of how the "act of exploitation" of a work should be interpreted; that is, the scope and content of rights affecting transmission systems under the copyright law of each country.
The principle of an emission theory has been adopted thus far in copyright legislation in Japan, but the question of what types of policies to devise for the global network era has not yet been settled. There is the traditional view of following the emission theory; the view, sympathetic to the Bogsch theory, of following the law of the country where the transmission is received; and the view of taking the laws of both the originating country and the receiving country as the governing law. Moreover, various other views could arise in the future.
What is important is to enact and to applicate a legal system that strikes the proper balance between the interests of rightholders and users in allowing the unhindered flow of information on cable or wireless global networks, thereby establishing a new order to foster rich culture and industry in all countries. Even though the existing framework, assuming as it does that works are distributed in tangible form, may not be suited to the era of cyberspace, it is believed to be important to strive for a system of legislation that does not ignore its relevance to the existing framework, and to explore the relevance of and harmony between legislation that covers distribution in which works are in the fixed form of tangible objects and legislation that covers the intangible communication of works by transmission systems.