Q1. What is a "digitized and networked society", and what kind of characteristics does it have?

Answer
The recent development of digital technologies changed the essential nature and functions of the computer from a simple calculating device to a comprehensive information/data processing machine. A variety of pieces of information are now put into computers as digital data and used with or without various forms of modification and processing. Moreover, the rapid development of telecommunication technologies such as the Internet has realized a worldwide network of computers connected to each other, and now we all can obtain a lot of information immediately from any part of the world. The present society with revolutionary development of digital/communication technologies is now called a digitized and networked society.
Then, what kind of characteristics does such a society have?
Firstly, a number of different categories of works and data such as texts, sound, pictures and moving images, which used to be reproduced and used independently, now can be compiled in one single medium of fixation such as CD and DVD by digitization.
The implication of this new phenomenon to the copyright legislation is that the boundaries among different categories of works, e.g. literary works, musical works, photographic works, cinematographic works, etc., in terms of the nature of copyright protection might become meaningless by the digitization and compilation.
Secondly, the compliled digital contents have a kind of interactivity by which the user can freely access the components in the content which he/she needs, rather than the one-way nature in the past, with the possibility of further compilation and/or modification. The major ways of the exploitation of works used to be reproduction, rental, broadcasting, etc., in which the works were used without modification. However, in the case of digital contents, modification has become another major way of exploitation, and therefore, maintaining the integrity of preexisting works has become problematic, which caused a problem and a controversy in terms of the protection of the moral interests of the author.
Thirdly, the development of the digital reproduction technologies brought about the advent of clone copies, which can be created quite easily. It is now quite easy to make new copies by making use of a CD-R or a DVD-RW, which are identical to the originals stored in CDs or DVDs sold in the market. Such an act of making identical digital copies is now expanding to a number of digital contents, and as such content usually incorporates great many data and works, the unauthorized reproduction of digital contents will surely cause extremely serious damages on a number of relevant right owners.
Fourthly, the information put into a computer can easily be transmitted to the whole world through the Internet simply by uploading it in a server. This means that the protection of copyright now should be developed in the international context rather than as an issue within each country.
The above-mentioned newly arising problems have been discussed in the Government (the Japan Copyright Office) and a series of amendments of the Copyright Law and other measures have been taken frequently, however, a number of still other issues seem to arise in the future along with the further development of digitization and networking.

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Q2. Who is the author of the work which was created by company B based on an order from company A ?

Answer
No such formality as registration to the government is needed to be granted copyright (non-formality rule). Therefore, when a creator has created a work he/she automatically becomes its author and, at the same time, is granted copyright. This is one of the biggest differences between copyright and industrial property rights such as patent, which calls for certain legal procedures to be granted.
"Author" means "a person who creates a work" (paragraph (1), Article 2 of the Copyright Law). This looks like a matter of course, however, a number of people misunderstand it, causing a lot of confusion.
For example, just before the Tokyo Olympic Games were held, a lot of remarkable developments were found in the city of Tokyo such as the construction of the National Stadium, a number of new hotels, the metropolitan highways, the bullet train lines, the monorail lines and so on. Then, a journal publisher planned to make, as a part of the journal, an illustrated map entitled "New Tokyo after the Change". The publisher asked an illustrator to design the map and provided him with all necessary materials and information for the creation. The illustrated map was completed, put in a volume of the journal and highly evaluated by the readers.
After its publication, another publisher planned the same thing, asked the same illustrator to make a similar map, and put it in its own journal. The first publisher sued the second publisher for copyright infringement, claiming that the first map had been created by the illustrator based on its request and using the materials provided by it, and therefore, the copyright should belong to it, and it was reproduced by the second publisher without authorization, infringing the copyright.
However, the first publisher lost the case. It was true that it had given the chance to create the map to the illustrator, facilitated the creation and supported him by providing necessary materials. However the "person who created the work" was the illustrator and the first publisher itself did not create it.
Some people may feel strange, hearing this judgment, however, this judgment is quite normal in terms of the globally shared legal system of copyright protection.
If the first publisher wanted to have copyright (economic rights) of the map, it was necessary to make a contract with the illustrator, at the time of the request of creation, that copyright of the map would be assigned (transferred) to the publisher.

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Q3. Who is the author of the work which was created by the cooperation of some people?

Answer
There are two types of works which are created by two or more people. One is the case in which the work apparently looks like one work but is actually composed of some independent works. Some examples of this type are a piece of music the melody and the lyrics of which were created by different people and a book the novel and the illustrations in which were created by different people. They are often called "combined works". In the case of such a work, all the components are independent works, and therefore, the rules of the authorship and exploitation are the same as the case of other works. Copyright in terms of each component is held by its author, and therefore, those who would like to make use of just one component should obtain the authorization of the author of that component alone. Also, when the term of protection of one component expires, the exploitation of that component does not call for authorization any more.
The other case is called a "joint work", which is created through the cooperation of two or more people, and the contribution of each person in which cannot be exploited separately. A number of large digital contents seem to belong to this type. As a joint work is a single work, its copyright is held collectively by all the people who contributed to the creation. Therefore, those who would like to exploit a joint work should obtain the authorization of all such people. However, with a view to ensuring the smooth circulation of joint works the Copyright Law provides for in its paragraph (3), Article 65 that each co-owner of the copyright of a joint work may not, without reasonable justification, refuse the consent or prevent agreement. The term of protection of a joint work is the same as ordinary works, i.e. 50 years after the death of the author, however, it should be calculated from the death of the last surviving co-author (paragraph (2), Article 51 of the Copyright Law).

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Q4. Who is the author of the work which was created by an employee of a company as his duty?

Answer
This question is on, when an employee of a company creates a work, who will be the author to be granted copyright, the employee or the company.
As the author should be the creator of the work in principle, the employee should have the status of the author. However, taking into account the fact that the employee created the work as his duty, being paid by the company, it should also be possible to adopt another legal system in which, in such a case as the above, the company has the authorship of the work.
This way, there are two possible systems, and the Japanese Copyright Law grants the status of author to the employer under some conditions, considering that, as such a work as the above is usually exploited by the employer, if the employee is granted copyright, the legal relation between the employer and the employee will be complicated, and also, the use of the work may be hampered.
The conditions listed in the Copyright Law, by which the employer becomes the author, are the following (paragraph (1), Article 15 of the Copyright Law).
(1) The work is created within the framework of the employer's business.
(2) The work is created by an employee as his duty.
(3) The work has been or would be open to the public under the name of the employer.
(4) There is no specific stipulation in the contract of employment.
The author of any work fulfilling all of the above conditions is the employer, and therefore, the employer is granted not only all the economic rights but also the moral rights.
However, in the case of computer programs, some programs are kept within the company as a secret and/or used only in the company without being disclosed to the public. Such a computer program usually has no indication of the name of the company, which means that it does not fulfill the above third condition. Therefore, the Copyright Law was amended in 1985 so that, in terms only of computer programs, the employer is granted the status of author without fulfilling the above third condition. After this amendment, the company keeps the authorship as well as the ownership of the economic rights without any indication of its name on the computer program.
However, the above new system was made mainly for computer programs which will not be open to the public, and therefore, in the case of computer programs for sale (e.g. those stored in CD-ROMs for sale) it would be better to indicate the name of the author (maker) to avoid any misunderstanding and/or confusion.

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Q5. Who is the author of the work created by an order from someone else?

Answer
The creation of a work is often ordered from a company to another. In such a case, which company owns the copyright of the created work?
As has been mentioned in Q2, the author of a work is, in principle, the person who actually created the work, and therefore, the company which ordered the creation of the work, paying the necessary money, does not have the authorship or automatically own the economic rights of the work.
For example, when company A ordered the creation of a work to company B, and company B's employees, b1, b2 and b3, actually created the work, company B is be the author of the work as was explained in Q4.
If company A would like to own the copyright of the work, although moral rights cannot be transferred, it should have a contract with company B which stipulates that the copyright (economic rights) should be assigned from company B to company A. It would usually be better to stipulate it in the contract of the order of the creation of the work from the beginning.
Attention should be paid to the fact that company A can obtain by such a contract only the economic rights and the moral rights will still remain on company B's side. However, as to the right of disclosure (divulgence) among the moral rights, the Copyright Law provides for that when the author transferred the economic rights he/she is presumed to have authorized to disclose the work by the way of the exploitation related to the assigned economic right (paragraph (2), Article 18 of the Copyright Law). However, the moral right to keep the integrity of the work is still applicable.
If company A would like to own also the moral rights of the work, it should tentatively employ above b1, b2 and b3 to have them create the work. This way, company A can obtain the authorship itself as explained in Q4.

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Q6. Is it permissible to make a copy of a digital content for personal use?

Answer
The reproduction of a work to use the copy personally within a household or among a small number of friends (not for business purposes) does not need the authorization of the author (paragraph (1), Article 30 of the Copyright Law). Some typical examples of such cases are the recording of broadcasting programs at home and the copying of a part of a book for study.
The former Copyright Law established in 1899 also had a similar provision, however, the relevant article also said, "excluding the case to use mechanical or chemical methods," restricting the way of reproduction. Therefore, reproduction for personal use by handwriting was permissible but recording machines or copying machines should not be used to be covered by this limitation provision. However, the present Copyright Law established by amending the former Copyright Law in 1970, considering the development of relevant technologies, abolished the above restriction of copying methods. This means that what is called digital content also can be copied without authorization within the framework of the above limitation provision.
However, the new limitation provision was provided for far before the advent and diffusion of digital technologies. In the case of analogue reproduction, the quality of copies is much worse than that of the original, and therefore, the above exception did not seriously damage the legitimate interests of right owners. On the other hand, in the case of digital reproduction of digital contents, a number of clone copies of the same quality as the original can be made quite easily and rapidly, which can hardly be acceptable to right owners.
With a view to coping with this new situation, Article 30 of the Copyright Law has been amended frequently. In the amendment in 1984, reproduction by making use of a copying machine for the use of the public (e.g. a high-speed dubbing machine set up in a CD rental shop) was excluded from this exception (paragraph (1), Article 30 of the Copyright Law). However, reproduction by making use of a copying machine for the public use "solely for writings and printings" remains permissible "for the time being" by a special provision in the Supplementary Provisions. A typical example of such a case is the copying of a newspaper, making use of a copying machine in a convenience store.
Also, in the amendment in 1992, the private recording compensation system was established within the Copyright Law (paragraph (2), Article 30), and the payment of the compensation added to the prices of digital audio recording machines (those for DAT, DCC, MD, CD-R and CD-RW), digital visual recording machines (those for DVCR, D-VHS, MVDISC, DVD-RW and DVD-RAM) and relevant digital audio and visual recording media was started, so that the interests of right owners may not be unreasonably prejudiced.
However, these new systems may not be sufficient yet and further amendments of the Copyright Law may be needed for digital works.

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Q7. Is it permissible to make a backup copy of a computer program?

Answer
Although it hardly takes place these days, there used to be a number of cases that computer programs were fragile and easily damaged by malfunction of computers and/or sudden shutoffs of electricity. To cope with such cases, it became a normal practice among computer users to make backup copies of computer programs, the act of which was covered by copyright (the right of reproduction), and therefore, called for the authorization of the author in principle.
If the backup copy is to be used only for personal purposes (excluding business purposes) this act of reproduction was permissible by the exception explained in Q6. However, as reproduction for business purposes, e.g. the case that an employee of a profit-making company or the national/local government makes a backup copy, was not covered by the above exception, another special exception just for backup copies of computer programs became needed so that it could be done without authorization by the right owner.
Therefore, a new article was established in the Copyright Law (Article 47bis), which provides for in its paragraph (1) as follows:
The owner of a copy of a program work may make copies or adaptations (including the making copies of a derivative work created by means of adaptation) of that work if and to the extent deemed necessary for the purpose of exploiting that work on a computer by himself, provided that the provision of Article 113, paragraph (2) does not apply to the use made of such copies in connection with such exploitation.
Actually, in many cases, the act of reproduction to make a backup copy is authorized by the right owner by an indication in the manual or other documents attached to the computer program at its sale, however, even if such an indication does not exist, a backup copy can be made without authorization based on the above-mentioned exception.
Attention should be paid, however, to the fact that only one copy can be made without authorization as a backup copy, and therefore, making a number of (backup) copies and distributing them to a lot of employees within a company are not permissible within the framework of this exception. Paragraph (2) of the above-mentioned article also provides for as follows.
If the owner of copies mentioned in the preceding paragraph has ceased to have the ownership of any of copies mentioned in that paragraph (including copies made in accordance with the provision of that paragraph) for reasons other than those of destruction, he may not thereafter preserve other copies in the absence of any declaration of the intention of the copyright owner to the contrary.

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Q8. Is it permissible for a public library to make a copy of a library material such as a CD-ROM for library users?

Answer
Libraries are collecting an increasing number of CDs, CD-ROMs and other digital contents as their library materials in addition to such traditional ones as books, periodicals, newspapers, phonograms and so on.
The Copyright Law provides for an exception for reproduction by the library with a view to responding to the needs of library users to receive copies of library materials as follows.

[Paragraph (1), Article 31 of the Copyright Law]
It shall be permissible to reproduce a work included in library materials ("library materials" in this Article means books, documents and other materials held in the collection of libraries, etc.) within the scope of the non-profit-making activities of libraries, etc. ("libraries, etc." in this Article means libraries and other establishments, designated by Cabinet Order, having the purpose, among others, to offer library materials for the use of the public) in any of the following cases:
(i) where, at the request of a user and for the purpose of his own investigation or research, he is furnished with a single copy of a part of a work already made public or of all of an individual work reproduced in a periodical already published for a considerable period or time;
(ii) where the reproduction is necessary for the purpose of preserving library materials;
(iii) where other libraries, etc. are furnished with a copy of library materials which are rarely available through normal trade channel because the materials are out of point or for other similar reasons.

In the above provision, "libraries and other establishments, designated by Cabinet Order, having the purpose, among others, to offer library materials for the use of the public" are the National Parliamentary Library, public libraries established by prefectures, public libraries established by municipalities, university/college libraries and technology college libraries, as well as libraries within national museums and such other organizations as the Federation of Economic Organizations. However, libraries in private profit-making firms are not included.
Also, as to above (i), not only a part but also all of an individual work incorporated in a periodical can be copied by the library without authorization of the author after a considerable period of time following the publication.
Digital library materials incorporated in CDs, CD-ROMs and other digital media as well as all other digital library materials can also be copied by the library, making use of the above exception. However, this exception was established before the advent and diffusion of the works of digital format without expecting that library would collect a number of digital contents, and also, there may be a movement in the future to amend this exception. Therefore, it seems better for libraries to refrain from widely making use of this exception for digital library materials.
Another on-going controversy is on the facsimile and e-mail transmission services of the copies made by the above-mentioned exception. As the act of transmission to the public by any means including facsimile and e-mail is covered by another independent right of public transmission, the copy made by the library, making use of the above exception, should not be transmitted to library users (the public) without authorization of the right owner. On the other hand, from the viewpoint of library users, it looks strange that, while the copy can be directly handed or mailed, it should not be electronically transmitted. The Copyright Sub-Council of the Culture Council of the government is continuing the discussion on this issue.

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Q9. Is it permissible for a public library to digitize preexisting library materials?

Answer
The Copyright Law provides for that it is permissible for public libraries to reproduce their library materials "where the reproduction is necessary for the purpose of preserving library materials" (Article 31 of the Copyright Law). As this limitation provision does not exclude digital format, it is also permissible to digitize pre-existing library materials if it is done "where the reproduction is necessary for the purpose of preserving library materials". However, this condition of "necessary for the purpose of preserving library materials" is usually interpreted narrowly, and the ordinary interpretation is that, when a library reproduces its materials, for example, in microfiches or microfilm to cope with the problem of preserving space, the original materials should be destroyed.
Therefore, based on this interpretation, when a library digitizes its materials for the reason of "the reproduction is necessary for preserving library materials", the originals should be destroyed or, if not, the authorization of the right owners should be obtained.
Also, when a library digitizes its material not by reproducing it as a whole as an visual image by a scanner of a computer but by changing each letter into digital signals, attention should be paid to the possibility to infringe the moral right of integrity (paragraph (1), Article 20 of the Copyright Law) as it might be impossible to perfectly digitize the original text because of any technical problem.
Although the moral right of integrity does not apply to "modifications which are deemed unavoidable in the light of the nature of a work as well as the purpose and the manner of exploiting it" (paragraph (2), Article 20 of the Copyright Law) and there could be an interpretation that this right does not apply to the case of impossibility to perfectly digitize the original text, there should be a proof that the case really corresponds to the impossibility by technical reasons.
Some authors insist on the use of specific (old-fashioned) letters, e.g. old Chinese characters which cannot be digitized by a device of Level 1 or Level 2 of the Japan Industrial Standard, or on a specific page structure, e.g. intentionally scattering a limited number of Chinese characters in a balanced way on every two (left and right) pages to be seen at the same time. It would, therefore, be better to pay due attention.
Also, digital transmission of library materials is a totally different issue from their digital reproduction. The exchange of materials among libraries by digital transmission would be good to a lot of libraries to cope with financial and space problems, as well as to the library users, and therefore, the further development of such systems is expected.
However, from the viewpoint of copyright protection, some relevant acts call for the authorization of the right owners. Firstly, a library can provide other libraries with copies of its materials without authorization only "where other libraries, etc. are furnished with a copy of library materials which are rarely available through normal trade channel because the materials are out of point or for other similar reasons" (Article 31 of the Copyright Law). Therefore, the authorization of the right owners should be obtained in the case where the material is available through normal trade channels. Secondly, the act of transmission of library materials to the public is covered by the right of public transmission of the right owner, and therefore, the authorization is always needed because Article 31 of the Copyright Law provides for an exception only to the right of reproduction.

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Q10. Is it permissible for a school teacher to digitize a preexisting work to make teaching materials?

Answer
School teachers often digitize preexisting contents to make use of the copies as teaching materials. This act of digitization corresponds to "reproduction" under the Copyright Law, and therefore, the authorization of the right owner is needed, in principle, if the content is a work of authorship protected by copyright.
However, Article 35 of the Copyright Law provides for in its paragraph (1) an exception as follows, and therefore, the reproduction of a preexisting work by digital format is also permissible if all the conditions below are fulfilled.
A person who is in charge of teaching and those who are taught in a school or other educational institutions (except those established for profit-making) may reproduce a work already made public if and to the extent deemed necessary for the purpose of use in the course of lessons, provided that such reproduction does not unreasonably prejudice the interests of the copyright owner in the light of the nature and the purpose of the work as well as the number of copies and the form of reproduction.
Attention should be paid, however, to the fact that this article provides for a general condition: "provided that such reproduction does not unreasonably prejudice the interests of the copyright owner in the light of the nature and the purpose of the work as well as the number of copies and the form of reproduction," which means that when the number of the copies is considerably or unnecessarily large, the authorization of the right owner is needed.
The number of the copies should be less than the number of the students or pupils in one class (less than 40) or, in the case of a work used in computers, less than the number of computers used by one class (usually less than the number of students), and in such cases the authorization does not seem necessary.
If the digitization of a preexisting work is done not by the teacher but by another person, the above-mentioned exception does not apply, and the authorization of the right owner will be needed. Also, the digitization of materials in profit-making educational institutions, such as a cramming school or a culture center, is not covered by the above exception, and therefore, calls for the authorization of the relevant right owners.

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Q11. How should computer program be used in the classroom?

Answer
When an educational institution introduces computers for teaching it usually also purchases computer programs to be used in them.
The nature of the contract to purchase a computer program varies, e.g. only one copy of the computer program is purchased and the reproduction to make the same number of copies as that of the computers is authorized; copies of the computer programs of the same number as that of the computers are purchased; or the computer program is installed in each computer by the supplier itself. The type is usually fixed by the contract between the supplier (usually the copyright owner) and the education institution, and therefore, the reproduction of the computer program by the education institution should be done within the framework of the contract.
For example, if the contract says that only 50 copies can be made for 50 computers but a teacher makes 60 copies, there will be a problem of the interpretation of the Copyright Law on whether the excessive 10 copies are permissible by the exception provided for in Article 35 of the Copyright Law (for the reproduction to make teaching materials). In such a case, the contract prevails over the exception provision, and therefore, further authorization is needed to make the additional 10 copies.
Also, there could be a case that a number of computers in a school are connected to one another by a LAN within the school building, and one computer program is transmitted to and downloaded in all the computers. Such a transmission within "one premise" is excluded from the concept of "public transmission" by the definition in the Copyright Law. However, by the amendment of the Copyright Law in 1997, the public transmission of a computer program within one premise was excluded from this exception, and therefore, it now calls for authorization.
It is often reported that an increasing number of teachers make copies of the drill books and work books which have been provided as samples by teaching material companies, and the organization of such companies, which were suffering from the shrinking market because of the diminishing population of children, requested the Ministry of Education, Science and Culture in 1988 to push schools to stop this infringement. The same problem is found also in terms of digital teaching materials such as drills in CDs.
Teachers may reproduce preexisting works to make teaching materials without authorization of the right owners, however, this exception applies only when "such reproduction does not unreasonably prejudice the interests of the copyright owner in the light of the nature and the purpose of the work as well as the number of copies and the form of reproduction." Therefore, the works which have been made to be purchased by each learner, including both printed teaching materials and digital ones, should be reproduced with the authorization of the relevant right owners.

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Q12. Is a web page or a blog protected by copyright?

Answer
An increasing number of firms and people are having their own web pages and blogs, after the advent of the Internet age, to transmit information through the digital network.
Such a web page is often called "homepage" (to mean all pages and files of the web page) in Japan, which originally means the first page displayed after accessing a URL starting with "www" just like the cover page of a book.
A blog means a web site in which someone's diary and/or comments are displayed, which can be made much easier than a web page. Both of "web page" and "blog" are a kind of "web site".
The nature of a web page or a blog varies from those only with text files to extremely complicated ones with a number of pictures, moving images, sounds and so on. The majority of web pages seem to correspond to "works" (independent works or compilations) under the Copyright Law. Although paragraph (1), Article 10 of the Copyright Law, which provides for the examples of the categories of works, does not mention web page or blog, it is just because such a digital work did not exist and was not expected when the Copyright Law was established. Paragraph (1), Article 2 of the Copyright Law provides for the definition of "work" as "a production in which thoughts or sentiments are expressed in a creative way and which falls within the literary, scientific, artistic or musical domain," and therefore, a web page which corresponds to this definition is a copyrighted work of authorship.
After the advent of computer programs, a number of cases of unauthorized reproduction were reported and the Court said that, although computer program was not listed in Article 10 of the Copyright Law it was protected by the Copyright Law as a type of copyrighted work. This pushed the movement toward the amendment of the Copyright Law in 1985 to establish a number of provisions for computer programs.
Just like computer programs in the past, "web page" and "blog" are not explicitly mentioned in the Copyright Law, however, it should be covered by the Law either as an independent work or as a compilation. Therefore, downloading the contents in a web site without authorization (or an exception provision in the Copyright Law) would constitute infringement of copyright viz. the right of reproduction and/or public transmission.
A complicated web page is often created by a specialized company by an order from a client, and in such a case, the owner of economic rights should be clearly stipulated in the contract from the beginning. Also, if the web page is a compilation of preexisting works, attention should be paid, in the process of creation, to the economic and moral rights of the authors of such preexisting works to be incorporated.

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Q13. How can a preexisting work be used in a web page or a blog?

Answer
Preexisting works such as texts, pictures, photos, etc. are quite often incorporated into web pages and blogs, and it means that the act of reproduction takes place by storing such works within the memory of the server. This act, of course, calls for the authorization of the author. Article 30 of the Copyright Law provides for an exception for reproduction for private use, and the reproduction of a preexisting work in a personal web page (not a web page of a company for profit-making purposes) may seem to be covered by this exception. However, storing a work in the server to make a web page is to reproduce the work not for personal use but for transmission to the public, and therefore, the above article does not apply to such a case. Also, as the web page or the blog is transmitted to the public, the person who makes the web page or blog, making use of preexisting works should obtain the authorization of the relevant authors not only for reproduction but also for public transmission.
The above is the general principle, however, there are some points which need further clarifications in terms of other exception provisions.

(a) Reproduction of National/Local Authorities' Reports
Paragraph (2), Article 32 of the Copyright Law provides for, "It shall be permissible for the press or other periodicals to reproduce informatory, investigatory or statistical data, report and other works of similar character which have been prepared by organs of the State or local public entities or independent administrative organs for the purpose of public information and which have been made public under their authorship, provided that the reproduction thereof is not expressly prohibited." Therefore, preexisting works can be reproduced without authorization "for the press or other periodicals". However, a web page or a blog does not seem to correspond to "the press or other periodicals", and therefore, authorization seems to be necessary to reproduce such a work in a web page, according to the provision of the Law.
There could be an opinion that, as the informatory, investigatory or statistical data, report and other works of similar character which have been prepared by organs of the State or local public entities or independent administrative organs are made for the purpose of public interests, such organs or entities will not complain of such a use. However, if someone takes this opinion he/she should make use of the work at his/her own risk.

(b) Quotations
The act of reproduction and other uses as a quotation are permissible under the condition that the use is "compatible with fair practice and their extent does not exceed that justified by purposes such as news reporting, criticism or research" (paragraph (1), Article 32 of the Copyright Law). However, such questions as the meaning of "fair practice" and the range of "extent .... justified" are all case law issues. Therefore, the user who would like to make use of this exception should make efforts by e.g. (1) making a blank line between the quoted part and other parts, and (2) make a clear distinction between the major part (written by the author of the web page) and the subordinate part (quoted part). Also, attention should be paid to the obligation to indicate the source (paragraph (1), Article 48 of the Copyright Law).

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Q14. Does the act of "linking" without approval constitute infringement?

Answer
Linking is a mechanism by which the person looking at a web page on his/her personal computer's display can automatically access the URL in the web page directly just by clicking the URL on the display.
Some people worry about the relation between linking and copyright. However, the act of linking, viz. showing in one's web page a URL of another web page does not constitute any infringement of copyright, because the person who clicks the linked URL on the display directly accesses that web page and no reproduction or transmission takes place in the server of the linking web page.
Sometimes there is an indication in a web page which says, "Please contact and obtain authorization for linking" or "Approval needed for linking", however, such an indication has no legal meaning or effect. When a URL of a web page is open to the public any one can reproduce it in a book or in a web page (either by linking or just copying it). Also, if the author of a web page would like to let only specific people access it, he/she can easily make use of a password system to avoid public access.
However, if the system of linking is accompanied by the act of reproduction within another server, the authorization should be obtained. In such a case, if any, attention should be paid also to the right of integrity.

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Q15. Will it cause any copyright problem to share music files with others by making use of a file exchange program?

Answer
The act of "file exchange" means to transmit data each other among personal computers, which have functions as interactive transmission servers, by so-called "P2P" (Peer to Peer of Person to Person) form transmissions. By this system it is possible to transmit data through the Internet without making use of an independent server on the network, and a lot of people are now using this system by installing a file exchange program into their personal computers.
There are two different types in such systems: one is the system in which an independent server on the network is used just for the search of information on which musical file is in which personal computer; and the other is the system without such a server, in which the information search can be done directly among the relevant personal computers. The Napster is an example of the former, and the Gnutella belongs to the latter.
Downloading a music file by such a system anyway means reproduction of a musical work, however, making a copy for the purpose of personal use can be done without authorization of the author (paragraph (1), Article 30 of the Copyright Law).
It should be noted, however, that the following cases constitute infringement of copyright: a) downloading a musical file to let other people use it; b) putting the downloaded music file, which was copied for personal use, into a file accessible from others (paragraph (1), Article 49 of the Copyright Law).
Also, putting a work into the file which is accessible from others constitutes infringement of copyright both before the access (the act of making available) and after the access/transmission (the act of public transmission).
The Court once announced the judgment that the provider of a P2P system similar to the Napster was guilty in terms of the infringement of the right of making available and public transmission, because the relevant acts had been carried out by the users under its general control and management even though the provider itself had not been doing the uploading or transmission.

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Q16. Is there any copyright problem in audiovisual works transmitted through the YouTube?

Answer
The YouTube is the world's largest contribution site of audiovisual works, by which a number of people can contribute their own works as well as download those of others. The contribution of an audiovisual work which was created by the contributor himself/herself of course would not cause any copyright problem at all, because all rights belong to the creator. However, if the work contains other works such as music created by others, the contributor should obtain the authorization of all the relevant authors beforehand so that he may not infringe the rights of reproduction, making available and public transmission of such right owners. Also, attention should be paid to the publicity rights as well as the privacy of the people who appear in the work, if any.
On the other hand, if the contributor would like to upload an audiovisual work such as a film and a TV program which have been created by someone else, he should obtain beforehand the authorization of the relevant right owner such as the film company and the TV station. Also, authorization should be obtained all the right owners of the works incorporated in such an audiovisual work. If the contributor uploads a pre-existing work without necessary authorization, the act of transmission to the public will constitute the infringement of the right of public transmission. Also, even before the transmission to the public, the act of uploading itself will constitute the infringement of the right of making available. Right owners prefer the latter right in general because while it is virtually quite difficult to identify the act of transmission and downloading, it is relatively easy to identify the act of uploading just by searching their works on the network. Most court cases have been raised by the relevant right owners in terms of this right of making available.
Also, uploading a live performance without authorization would constitute infringement in terms of not only the author's right but also the neighboring rights (including the right of making available) of the performer.

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Q17. Is there any copyright problem to simply use a pirated copy of a work purchased through the Internet auction?

Answer
The reproductions of copyrighted works such as books, phonograms, digital contents, etc. which were made without authorization of the right owners are usually called "pirated editions". Making such copies without authorization of course constitutes infringement (Article 21 of the Copyright Law), and also, it is deemed as infringement to distribute (transfer or lend) such copies to the public, knowing that they are pirated editions (paragraph (1), Article 113 of the Copyright Law). Therefore, the act of making a pirated copy and/or selling it through the Internet auction infringes copyright.
Then, how about the purchaser of the pirated copy? To discuss this issue it is necessary to come back to the fundamental basis of the protection of works by copyright.
Copyright is a system to protect the "expression" of a work rather than the "idea" behind it. On the other hand, industrial property rights such as patent are to protect "ideas" such as invention, design and trademark. This difference is also reflected in the acts which constitute infringement.
In the case of copyright, the acts which constitute infringement are those to exploit the "expression" such as reproduction (including tangible reproduction by copying and/or recording as well as intangible reproduction by performing, displaying and/or transmitting). Therefore, simply using a work without reproducing the expression, for example "perception" such as reading a book, listening to a CD and seeing a movie, would not constitute any infringement of copyright. On the other hand, in the case of industrial property rights, the act of using the idea constitutes infringement even if no copy is made. Therefore, purchasing a pirated edition and simply using it without reproduction does not constitute any infringement of copyright in principle.
However, in the case of computer programs, which create a lot of economic value by being "used" on a computer without reproduction, it should be reasonable to cover the act of "using" by copyright at least for pirated copies, if not for legally made and sold ones. Therefore, the Copyright Law was amended in 1985 and it was newly provided for that "an act of using on a computer, in the conduct of business, copies made by an act infringing copyright in a program work (including copies made by the owner of such copies in accordance with the provision of Article 47bis, paragraph (1) as well as copies of a program work imported as mentioned in item (i) of the preceding paragraph and copies made by the owner of such imported copies in accordance with the provision of Article 47bis, paragraph (1) ) shall be considered to constitute an infringement on that copyright, so far as a person using such copies is aware of such infringement at the time when he has acquired an authority to use these copies." (paragraph (2), Article 113 of the Copyright Law)
According to this provision, if the "work" in the question corresponds to a "program work" and the purchaser knows that the copy is a pirated one, the act of using it in the conduct of business constitutes infringement. The fact that the purchaser knew the infringement should be proved by the right owner, however, in such a case as the price was extremely low the Court will be likely to judge that he knew it.
Attention should be paid to the fact that the act of using such a computer program will be considered as infringement only in the case of the use "in the conduct of business". Therefore, the use of a pirated computer program in a game center or a company constitutes infringement, however, personal use will not be infringement.

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Q18. Is the copyright of a freeware waived?

Answer
The computer programs which can be downloaded freely through the Internet can be roughly classified into two categories: freeware (free of charge) and shareware (charged).
In terms of the former, there could be a controversy on whether the copyright has been waived or not. Supplying a work freely means that the author will not complain of any reproduction or other uses of it by any user, and this situation may look like the waiver of copyright.
However, this understanding is totally wrong. The author of such a computer program may intend to widely diffuse it but at the same time to start to charge fees after its version-up in the future. Also, the computer program after a version-up corresponds to a "derivative work" under the Copyright Law, and its author is the person who actually carried out the version-up (the creation of a derivative work). Therefore, if the copyright of the first version (the original work, the author of which is granted the right to control the use of all the derivative works) is waived, the derivative work made by someone else will not be covered by the copyright of the author of the original.
The author of the original does not seem to intend such a situation, and therefore, the case of freeware should be interpreted as the author keeps his copyright but just refrains from exercising it.

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Q19. Should the maker of translation software take the liability of unauthorized translation done by its user?

Answer
As computer programs for language translation develop, an increasing number of people are now downloading them and translating information and materials in overseas web pages, making use of them. The act of translation of a preexisting work is covered by copyright, and therefore, the translator should obtain the authorization of the author beforehand except for the cases covered by the exception provisions in the Copyright Law. If a work is translated without authorization and exception provision, the author may claim civil and/or criminal remedies just like other cases of copyright infringement.
The above question is on whether the maker of the translation program has any contributory liability for the infringement committed by a user in addition to the user himself. In general, the maker seems to have no liability, because the user of the translation program does not necessarily use it to infringe copyright. The program can be used for the translation of a work the term of protection of which has already expired, a work which is not protected by copyright, a work for private use, a work with authorization, and so on, no case of which is infringement.
Therefore, as long as the user of the program makes use of it for such lawful ways, there will not be any liability of anyone. Also, even if the user infringes copyright, the maker who does not know it nor expect it will have no liability. This is the same case as a shop owner who sold a knife would not take any contributory liability for the murder committed by the user.
However, if the maker knows that the user is willing to make use of it for infringement, there could be a possibility that contributory liability is claimed.

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