Business in local authority and copyright
    Chapter 2 Reproduction by Copying Machines

    2. Reproduction by Copying Machines

    Q 2-1 We often copy articles in books and journals as materials for training programs for the officials. Will there be any problem of copyright?

    Answer

    Although a number of people are using copying machines every day without thinking of copyright, the act of copying corresponds to the most basic way of exploitation of a work, i.e. reproduction covered by copyright. The English term, "copyright" clearly shows that the act of copying is in the center of the author's right. Taking copies in the course of business almost always calls for the authorization of the author and otherwise it would constitute an infringement.

    There are also some cases in which copyright is limited as exceptions and they include, for example, reproduction for private use. There also is an exception for reproduction for internal use by administrative organs, by which copies can be taken without authorization for such a purpose to the extent deemed necessary and under the condition that such reproduction does not unreasonably prejudice the interests of the copyright owner. However, this exception applies only to the cases in which such reproduction has the direct necessity to carry out the business of the public authorities, and the act of reproduction to simply make reference materials is not covered by it.

    Therefore, copying preexisting works for training programs, the act of which is not directly related to the business of the public authorities, calls for the authorization of the relevant right owners. However, if the training program is planned and carried out by a training center which falls under the category of non-profit-making non-formal educational institution and the copies are taken by a person who is in charge of teaching in it, this act can be covered by another exception for reproduction in educational institutions.

    For the acts of reproduction of newspapers, journals, books and so on by copying machines, which are not covered by any exception in the Copyright Law, the authorization of the author is always needed. However, it is extremely difficult for the user to identify all right owners, to contact them and to obtain the authorization from all of them. Also, for the right owners it is extremely difficult to find and control all such acts carried out in great many places.

    Therefore, a lot of unlawful copies are taken every day. To cope with this problem, an organization for the collective exercise of the right of reprographic reproduction has been established in a number of countries. Also in Japan, there a number of such collective organizations, some of which are registered by the government based on the Law for Collective Management of Copyright, and the Japan Reproduction Rights Center (JRRC) is an example of such organizations, which is for reproduction rights.

    The JRRC is carrying out the business of collective contract of authorization for a small number of copies of a small number of pages in principle. Therefore, if the act of reproduction of the above question corresponds to this category, the JRRC can arrange the contract for authorization.

    Contact Point
    for Further Information
    Japan Reproduction Rights Center (JRRC)
    Relevant Articles
    of the Copyright Law
    Article 21 on the economic right of reproduction
    (xv), Paragraph (1), Article 2 on the definition of reproduction
    Article 35 on the exception for reproduction to make teaching materials
    Article 42 on the exception for reproduction for internal use by administrative organs



    Q 2-2 The city library provides copying service and facsimile transmission service for library users. Is there any problem of copyright?

    Answer

    Local public libraries established by prefectures and municipalities are covered by the exception provision of Article 31 of the Copyright Law. Based on this provision, it is permissible for such libraries to reproduce a work included in library materials such as books where, at the request of a user and for the purpose of his investigation or research, he is furnished with a single copy of a part or a work already made public. Also, for a work included in a periodical already published for a considerable period of time, it is permissible to reproduce not only a part of it but also all of it. The libraries to which this exceptional provision applies are provided for and listed in Article 1ter of the Cabinet Order to Implement the Copyright Law. This exception was established, considering the public functions of libraries as the major source of information for the users, however, as it is to limit the important right of authors, this exception should be used strictly within the framework of the conditions provided for in the Copyright Law.

    The above-mentioned exceptional provision applies only to the act of reproduction, and therefore, the facsimile transmission service, which is related not only to the right of reproduction but also to another economic right of pubic transmission, is not covered by this provision.

    Although each act of transmission by the facsimile service is of the point-to-point nature, as it is done for anyone (non-specific person) who requested the transmission, the act constitutes transmission to "the public" (non-specific person(s) or a large number of specific people) covered by the economic right of public transmission. Article 31 of the Copyright Law does not limit the economic right of public transmission, and therefore, the facsimile transmission service calls for the authorization of relevant authors in terms of the right of public transmission.

    This means that the libraries providing copying services should refrain from transmitting library materials to the users unless they have obtained the authorization. To cope with this issue, the organization of public libraries and such collective organizations as the Japan Reprographic Rights Center should discuss and develop an efficient contract system in the future.

    Contact Point
    for Further Information
    Japan Reproduction Rights Center (JRRC)
    Relevant Articles
    of the Copyright Law
    Article 31 on the exception for libraries
    Article 1ter of the Cabinet Order to Implement the Copyright Law on the exception for libraries
    Article 21 on the economic right of public transmission
    (vii)bis, Paragraph (1), Article 2 on the definition of public transmission



    Q 2-3 How was the range of possible use of works in libraries without authorization for the disabled expanded by the recent amendment of the Copyright Law?

    Answer

    For the visually and auditory disabled, it is often needed to perceive a work to carry out such acts as reproduction into Braille and the addition of subtitles, however, all these acts, which correspond to reproduction and/or adaptation, are covered by copyright.

    Therefore, there had been a number of exceptional provisions in the Copyright Law to limit copyright so that some of such acts may be done without authorization of relevant right owners.

    However, there were complaints from the users' side that the rage of the exception and limitation was to narrow, impeding the access of the disabled to information.

    Therefore, the Copyright Law was amended in 2009 to meet these needs, which will be explained below, however, the detailed rules and regulations are provided for in the relevant governmental ordinances. Therefore, for further details please contact the Copyright Division of JCO (Japan Copyright Office) of the Agency for Cultural Affairs.
    Firstly, as to visual disability, the scope of the disabled covered by the exception before the amendment, which was "the visually disabled", was expanded to "those who have disabilities in perceiving visual expressions". This means that the new scope also covers such people as those with developmental disorders and color-perception difficulties.
    Also, the scope of the ways of use which do not call for authorization was expanded to "any way of reproduction and interactive transmission to the public" necessary for the use by those who have disabilities in perceiving visual expressions. Therefore, the new scope also covers such use as the production of enlarged books and book recordings called DAISY (Digital Accessible Information System) for the visually disabled.

    Secondly, as to auditory disability, the scope of the disabled covered by the exception was expanded to "those who have disabilities in perceiving auditory expressions".

    Also, the scope of the works to be used without authorization was expanded to all kinds of auditorily expressed works (which are already disclosed), and therefore, not only broadcasting programs but also cinematographic works are now included. This means that not only changing (reproducing) auditory expressions into written texts and transmitting them but also adding subtitles to cinematographic works and lending them to the public are newly covered by the limitation.

    Thirdly, the facilities which may lend sound recordings to the visually disabled and reproductions to the auditory disabled were also expanded to include public libraries and libraries in higher education institutions.

    Contact Point
    for Further Information
    Copyright Division of the Japan Copyright Office (JCO), Japanese Government
    Relevant Articles
    of the Copyright Law
    Article 21 on the economic right of reproduction
    Article 27 on the economic right of adaptation
    Article 37 on reproduction and public transmission as a part of examination questions
    Article 37bis on reproduction and public transmission as Braille; sound recordings for the blind



    Q 2-4 In a chorus group of the city, the members are making copies of music books and use them for their practices and recitals. Is there any problem of copyright?

    Answer

    There is no exception provision in the Copyright Law in terms of the act of reproduction for non-profit-making purposes or that carried out by an organization of the public nature. The exception for reproduction for private use does not apply to the case of chorus group, either. Therefore, the act of reproduction in the question constitutes an infringement of the economic right of reproduction. It is argued that the poorest victims of the rapid development of copying technologies are music books and special/academic books.

    Old pieces of music the terms of protection (50 years after the death of the author) of which have already expired, such as classical music, can be copied freely. However, attention should be paid to such cases as music with the additional term of protection granted for the wartime, newly arranged pieces of music, and newly added or translated lyrics.

    For musical works, a collective society called JASRAC (Japan Society for Rights of Authors, Composers and Publishers) has been established, collecting the copyright of the majority of musical works, and the authorization can be obtained from this organization in terms of the majority of musical works. However, the act of reproduction of published musical books may not be authorized easily because of the gravity of the effect to the market.

    It is anyway better to contact JASRAC or other collective societies of musical works.

    Contact Point
    for Further Information
    Japan Society for Rights of Authors, Composers and Publishers (JASRAC)
    Relevant Articles
    of the Copyright Law
    Article 21 on the economic right of reproduction



    Q 2-5 Some teaching materials created by the teachers in our city are reproduced without authorization in a school in the neighboring city. Can we stop this act? Also, who is the right owner of such materials, the teacher or the school?

    Answer

    Some teaching materials may not be works of authorship. However, most of them seem to correspond to copyrighted works of authorship. Therefore, it would be an infringement of copyright if a teaching material is copied without authorization of the owner of the economic rights, and the right owner can claim the cessation of the infringement as well as the compensation for the damages.

    A problem in the case of the question is on who is the right owner. The moral and economic rights are automatically granted to the author, viz. the person who actually created the work, therefore, the author should be, in principle, a person. However, the Copyright Law provides for an exceptional case in which the employer obtains the authorship under some conditions.

    The conditions are the following.
    (a) The work was created by the initiative of the employer.
    (b) The work was created by an employee as his duty.
    (c) The work has been or would be disclosed under the name of the employer.
    (d) There is no relevant stipulation in the contract of employment.

    The case of the question is not clear in relation to the above conditions. If the material was made by the initiative of the school as a duty of the teacher, it may be possible that the school has the authorship. However, it seems that teachers make various education-related works apart from their duties, and therefore, the author of the majority of such materials seems to be the teacher who actually created them.

    If the teacher is the author of the teaching material, it is the teacher who can claim cessation to the infringer rather than the school. However, if the economic rights of the materials have been transferred to the school, it is the school that can claim the cessation. It is, of course, also always possible to ask the other school to stop the infringement instead of taking official legal actions.

    Relevant Articles
    of the Copyright Law
    Article 21 on the economic right of reproduction
    Article 112 on cessation
    Article 15 on works made by an employee in the course of his duties
    Article 17 on the rights of authors



    Q 2-6 Some teachers in the schools of this city buy a drill book and copy it to distribute to the students because they wouldn't like to force all the students to buy the same book. Is there any problem of copyright?

    Answer

    There is the provision in Article 35 of the Copyright Law which stipulates an exception for the use of preexisting works as teaching materials. However the application of this provision should be done carefully and strictly under the conditions provided for in the above article because it is to limit the right of authors.
    One of the conditions in the above article is that preexisting materials can be copied to make teaching materials without authorization only in "a school or other educational institutions (except those established for profit-making)". Therefore, such educational institutions as local public elementary, lower-secondary and upper-secondary schools, universities and colleges, colleges of technology, and local public non-formal educational institutions are included. However, private institutions for profit-making are excluded from the scope of the application of this exception.
    Another condition is that the act of reproduction to make teaching materials should be carried out by "a person in charge of teaching and those who are taught" in such educational institutions. Therefore, such people as the staff members of the school office or the officials in the local educational authorities cannot make copies, without authorization, to distribute to schools, teachers or students.
    Also, the copies should be made as teaching materials "for the purpose of use in the course of lessons". Therefore, the copies should not be used for other teachers' lessons or distributed to the students not for lessons but just for reference materials. In addition, the copies should be made "if and to the extent deemed necessary" in terms, for example, of the number of copies.
    Even if all the above conditions are fulfilled the above article also provides for that the copies can be made "provided that such reproduction does not unreasonably prejudice the interests of the copyright owner". For the case of a drill book in the question, such a book is published and sold, expecting to be bought by each student. If the teacher buys only one copy, reproducing and distributing the copies to the students, it will seriously damage the business of the publisher. Therefore, such reproduction mentioned in the question is a typical case which the above last condition intends to exclude.
    Even if the teacher has good will to contribute to the students, he/she should not infringe copyright just to help the students economically, and the authorization should be obtained beforehand. The authorization to copy a drill book cannot be obtained by a contract with the Japan Reproduction Rights Center (JRRC) because the center is not carrying out the collective management of the economic right of reproduction in terms of such books for education as drill books. Therefore, the teacher should make a contract each time he/she makes copies through the negotiation with all the relevant authors. It might be easier to make an original drill of the teacher.
    Contact Point
    for Further Information
    Japan Reproduction Rights Center (JRRC)
    Relevant Articles
    of the Copyright Law
    Article 35 on the exception for reproduction to make teaching materials



    Q 2-7 As a teacher I made as many copies of one painting in an art book as the number of students in my class to use them as a teaching materials. Afterward, I made more copies of the same painting for my presentation at a seminar on teaching methods. Is there any problem of copyright?

    Answer

    The exception to make teaching materials in education institutions, which is provided for in Article 35 of the Copyright Law is explained in Q 2-5.

    First of all, the act of copying the painting as a teaching material should be discussed. Such copies should be made "if and to the extent deemed necessary for the purpose of use in the course of lessons". Therefore, the copies should not be made for appreciation or as just a reference material because such copies are not really necessary for the lesson. Also, it seems doubtful whether the making and distribution of such copies is really necessary for an art lesson. For example, the necessity to copy the painting as a whole for all students is suspicious. Therefore, it should be carefully considered whether such an act really complies with the conditions provided for in Article 35.

    Supposing that such copies were made lawfully, it should be discussed then whether any copies can be used for other purposes such as the case mentioned in the question. The local education authorities often organize seminars for teachers in which a series of presentations are made by teachers on their teaching methods. In such seminars, the presenters often distribute their own teaching materials used in their classes to explain their teaching methods. However, such seminars are not "lessons" in educational institutions, and therefore, not covered by the above-mentioned exception. Distributing the copies in such a seminar would constitute an infringement of copyright.

    To distribute the copies, the teacher should either obtain the authorization of the author, or use another exception of quotation by writing his/her own report as the major work and by incorporating the copied teaching materials in it to be explained and/or criticized.

    Contact Point
    for Further Information
    Japan Artists' Association
    Relevant Articles
    of the Copyright Law
    Article 35 on the exception for reproduction to make teaching materials
    Article 32 on the exception for quotations

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