Business in local authority and copyright
    Chapter 1 Public Information Brochures

    1. Public Information Brochures

    Q 1-1 In my city we often copy a picture of a bird and the explanation in an illustrated book and use them in the City Office's information brochure to be distributed freely to the people. Is there any problem of copyright?

    Answer

    Pictures and explanations in an illustrated book are protected by the Copyright Law as photographic works and literary works. Therefore, copying these works without authorization constitutes an infringement of the exclusive economic right of reproduction of the authors. Also, copying just a part of a picture or an explanation constitutes an infringement of the exclusive moral right to keep the integrity of a work of the author.

    Some people think that copying just a part (element) of an illustrated book, rather than the whole book, is permissible as a "quotation" by the Copyright Law. However, the quotation (quoting reproduction) which is permissible under Paragraph (1), Article 32 of the Copyright Law should be "compatible with fair practice and the extent does not exceed that justified by purposes such as news reporting, criticism or research." For example, it is permissible to copy as a quotation a picture or an explanation in order to criticize it, however, there should be a clear distinction between the quoted part and other parts and also an obvious relation between the major part and the quoted subordinate part.

    Therefore, just copying a preexisting picture and an explanation from an illustrated book is not permissible under the Copyright Law, excluding the case that the part of the brochure is to criticize the picture and explanation.
    Article 42 of the Copyright Law provides for another exception that it is permissible to reproduce a work if and to the extent deemed necessary for the purpose of internal use by administrative organs, 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. However, as the City Office's information brochure is to be distributed to the people and not for "internal use", this exception does not apply to this case.

    Therefore, in such a case it is necessary to contact the relevant authors (not the publisher) to obtain the authorization.

    In the case of an illustrated book, attention should be paid to the relation between the authors and the publisher. In principle, the author of a work is the person who actually created it, and therefore, the publisher is not granted any copyright at all. However, it is also possible that some pictures or explanations were created by the employees of the publisher, and in this case, the author of such works (works made by an employee in the course of his duties) is the employer, i.e. the publisher. Also, it is possible that the publisher has bought the copyright (economic rights) from the authors, obtaining the status of the copyright owner.

    Therefore, it is better anyway to contact the publisher in order to have the information on who are the relevant authors.

    Contact Point
    for Further Information
    Copyright Research & Information Center (CRIC)
    Each publisher
    Relevant Articles
    of the Copyright Law
    (viii), Paragraph (1), Article 10 on photographic works
    (i), Paragraph (1), Article 10 on literary works
    Article 20 on the moral right of preserving the integrity
    Article 21 on the economic right of reproduction
    Paragraph (1), Article 32 on the exception for reproduction as quotations
    Article 42 on the exception for reproduction for internal use by administrative organs
    Article 15 on works made by an employee in the course of his duties



    Q 1-2 We asked a photographer to take a picture of the city to use it in our information brochure, but a spa hotel copied the picture to use in its advertising pamphlets. Can we stop it by copyright?

    Answer

    First of all it is needed to identify the owner of the exclusive economic right of reproduction in terms of the picture. Is it the city, which asked the photographer to take the picture, or the photographer himself?

    As the author of a work is the person who actually created the work, it is the photographer who is the author of the picture, having all rights included in copyright. Asking the creation of a work or paying money for it does not mean the acquisition of the status of author or right owner at all. While the moral rights cannot be assigned by contract, economic rights are transferable, and therefore, if the city authorities would like to have the economic rights of the picture, it is needed to settle a contract with the photographer in terms of the assignment of the economic rights. It would be better to make a written contract, however, a verbal contact may work. Also, it may be possible that, even if there is no contract, the Court says that it should be deemed that the assignment of the economic rights to the city took place, considering such facts as the fee was much higher than ordinary cases; the photographer gave all the negative films to the city and let it freely make use of them; and so on.

    If the economic rights have been assigned to the city, it can stop the act of reproduction of the picture by the hotel. If the hotel already reproduced the picture in its pamphlets, the city can request the destruction of them. Also, if the reproduction was carried out intentionally or involuntarily by the advertising agency or the hotel itself, compensation for damages can be claimed.

    If the economic rights still remain in the photographer, the city cannot take any legal action to stop the act of reproduction by the hotel. In this case, the city is just a user of the picture, who was authorized the exploitation by the photographer, and therefore, cannot prevent any act by other third party users.

    If the city would like to stop the reproduction by the hotel without having copyright, it should let the photographer know the unauthorized exploitation by the hotel, so that the photographer himself may stop the reproduction as the author. However, if the photographer has authorized the reproduction by the hotel, the city cannot stop it by any means. If the city and the photographer made a contract which stipulated that the photographer should have the approval of the city, when authorizing any use of the picture to others, the city may claim compensation for damages to the photographer, for a breach of contract, however, if not the city could not do anything at all.

    Contact Point
    for Further Information
    Japan Photographic Copyright Association (JPCA)
    Relevant Articles
    of the Copyright Law
    (viii), paragraph (1), Article 10 on photographic works
    (ii), paragraph (1), Article 2 on the definition of author
    Article 61 on the assignment of economic rights
    Article 21 on the economic right of reproduction
    Article 112 on cessation
    Paragraph (2), Article 112 on abandonment
    Article 114 and Article 114bis - Article 114quater on damages
    Article 709 of the Civil Code on unlawful actions
    Article 415 of the Civil Code on breach of contract



    Q 1-3 We copied in our information brochure an article in a newspaper and distributed the brochure to the people. Will it cause any problem of copyright?

    Answer

    Article 39 of the Copyright Law provides for that it is permissible to reproduce in the press, broadcast or diffuse by wire articles published in newspapers or periodicals on current political, economic or social topics, not having a scientific character, provided that such reproduction, broadcasting or wire diffusion thereof is not expressly prohibited.

    "Articles on topics" here include columns and editorials in newspapers. Attentions should be paid to the fact that newspaper companies are asserting that "by-line" means the indication of the prohibition. Also, this exception does not cover the ordinary articles which do not deal with "current political, economic or social topics".

    By the above exception provided for in the Copyright Law, it is permissible to make use of newspaper articles on current political, economic or social topics by reproduction, broadcasting and wire diffusion, if there is no indication of prohibition, considering the public nature of such articles and the needs for information among the general public.

    There could be a problem of interpretation on whether an information brochure of the local authorities corresponds to "the press". However, considering the purposes and the public nature of such a brochure in terms of the wide provision of information to the people, it seems to fall under "the press" in the above Article, though if the brochure is just for such a purpose as tourist information, it may not correspond to "the press".

    Also, the indication of the source is obligatory for the use of the above exception.

    Contact Point
    for Further Information
    Japan Newspaper Publishers & Editors Association (NSK)
    Relevant Articles
    of the Copyright Law
    Article 21 on the economic right of reproduction
    Article 39 on the exception for the use of articles on current topics
    Article 48 on the indication of the source



    Q 1-4 We invited a celebrated poet to an unveiling ceremony of a monument and took some pictures. We put one of them with his portrait in our brochure but he complained of it. Is there any legal problem?

    Answer

    Although there is no specific legislation, all people are granted, by case laws, the right to control the use of their portraits as a kind of moral right (a part of the right to privacy).

    In more concrete terms, this right is to authorize or prohibit the act of photographing one's portrait and of disclosing the picture to the public. However, there is also a limitation to this right for such cases as reporting current topics which is deeply related to the public interests.

    As to the case of the question, the answer depends on what kind of picture was put in the city's brochure. However, it is obvious that the poet had agreed to participate in the unveiling ceremony of the monument, which would be open to the public, and it must have been easy for him to anticipate that some pictures would be taken in such a ceremony. Also, if the taking of the pictures was apparent to the participants and the poet did not explicitly refuse to photographed, it was normal to presume that he agreed to the photographing.

    Therefore, in such a situation it does not seem to have been necessary, in legal terms, to request the authorization of the poet again for putting his picture in the city's brochure, together with the article to report the unveiling ceremony of the monument, considering the purpose and nature of the use from the viewpoint of the public and social aspects.
    However, the poet implicitly approved the photographing only in relation to the unveiling ceremony of the monument, and therefore, it could constitute an infringement of the right to portrait to make use of the picture, without his authorization, for other purposes such as putting the picture in an advertising pamphlet for tourists.

    The case of this question is related to the right to portrait (a kind of moral right) because the relevant stakeholder is a poet, however, it would be a problem of the right to publicity (a kind of economic right) if the stakeholder was a famous singer, actor or athlete. The names and portraits of such well-known people have the power to attract people's attention, and therefore, they have some economic value to be protected. These people are granted the economic right to control the use of their names and portraits also by case laws.

    Contact Point
    for Further Information
    Japan Publicity Rights Protection Organization (JAPRPO)
    Relevant Legal
    Background

    Judicial precedent of the right for portraits:
    ・Supreme Court (Full Bench) 24th December 1969

     (Case of Kyoto Student Association)

    Judicial precedent of the right for publicity:
    ・Supreme Court (Petty Bench 1) 2nd February 2012

     (Case of Pink Lady)

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