Business in local authority and copyright
    Chapter 4 Making of Video Contents

    4. Making of Video Contents

    Q 4-1 When the city made an advertising video for tourists, together with a scenery of the city, such things as some paintings in the museum, some sculptures in the part, and some pieces of music in CDs were recorded in the video. Is there any problem of copyright? Also, how about the case that in the course of shooting a poster displayed on the street happened to be recorded or background music in the city happened to be recorded in the video?

    Answer

    Shooting natural scenery would not cause any copyright problem under the Copyright Law. On the other hand, as has been explained in terms of other questions, recording such works as paintings and sculptures on video tape corresponds to reproduction under the Copyright Law. Attention should be paid to the fact that the owner of such a work as a painting or a sculpture is not necessarily, or usually is not, the owner of copyright. It should be easy to understand it by thinking of the case to buy a book, the act of which does not mean the acquisition of the copyright of the book.

    Therefore, even the museum which owns a number of artistic works can never exploit them without authorization of the authors unless it has obtained copyright by contract. To reproduce such a work, it is necessary to look for the author, rather than the museum, by contacting relevant associations and organizations.

    As to the sculptures in the park, Article 46 of the Copyright Law provides for that it is permissible to exploit artistic works permanently located in such open places accessible to the public such as streets and parks, or at places easily seen by the public such as the outer walls of buildings, excluding some cases such as the making of the same sculpture as the original or small copies for sale. Therefore, it is permissible to shoot the sculptures in the park.

    On the other hand, the reproduction of musical works in CDs for back ground music calls for the authorization of the relevant right owners. Such relevant right owners include not only the composer of the music but also the performers and the phonogram producer. With the view to identifying the relevant right owner to ask for authorization, it is advisable to use such a database as “Ongaku no Mori” or to consult the information of copyright collective societies. After recognizing the right owner, it will be needed to have a negotiation to have an authorization.
    It is also reproduction to record in a video (a work of authorship) such works as a poster displayed on the street on the street and background music in the city even if it was not intentional and only by chance. However, by an amendment of the Copyright Law in 2012 a new exception was established for such unintentional/additional use of works in the course of the creation of a work (therefore, excluding the case of live broadcasting, the program of which is not a work).

    Contact Point
    for Further Information
    Japan Artists' Association
    Japan Society for Rights of Authors, Composers and Publishers (JASRAC)
    Relevant Articles
    of the Copyright Law
    Article 21 on the economic right of reproduction of authors
    Article 30 bis on the exception for the unintentional/additional use of works
    Article 91 on the economic right of reproduction of performers
    Article 96 on the economic right of reproduction of phonogram producers
    Article 46 on the exception for the use of works located in open places



    Q 4-2 In a musical concert planned and organized by the City Office, we made a DVD of the performances with the authorization of all the performers. As this DVD is very good, we would like to reproduce and sell the copies. Will there be any problem of copyright?

    Answer

    There seems to be a number of points to be discussed in terms of this case. If this video tape corresponds to a cinematographic work which was made in a creative way, paragraph (2), Article 91 of the Copyright Law applies, which provides for that the economic right of performers do not apply to performances which have been incorporated in a cinematographic work with the authorization of the relevant performers. On the other hand, if the video is a simple recording of the stage without any movement of the camera, it is not a cinematographic work and the performers still keep the reproduction right. Therefore, if the video tape can be considered as a copyrighted work of authorship, it will not be needed to obtain the authorization of the performers again to reproduce and sell the original video.

    However, there could be a doubt in terms of the legal meaning of "with the authorization of all performers" in the question. If the authorization was given just verbally and the further exploitation of the video by reproducing and selling to the public was not anticipated or explained at the concert, there could be a legal problem with the performers. This way, the above case in the question may cause a lot of legal controversies and disputes, and therefore, it would be better to obtain the authorization of the performers again for the future use.

    Also, apart from the performers, the right of composers should not be forgotten. Although classical music the term of protection of which has already expired can be used freely, the use of contemporary music calls for the authorization of the author. This authorization should have been obtained for the concert directly from the copyright owner or through JASRAC or other collective societies of musical works. If the first authorization was just for the public performance at the concert, the shooting for the DVD itself was already an infringement of the author's right(the right of reproduction) of the composers. It is of course needed to obtain the authorization for further use such as the sale of the DVDs. Therefore, it is anyway necessary to contact the copyright owner directly or JASRAC (or other collective societies of musical works) for contract. However, it is sometimes the case that JASRAC or other collective societies of musical works cannot take care of the contract in terms of some foreign musical works.

    Contact Point
    for Further Information
    Japan Society for Rights of Authors, Composers and Publishers (JASRAC)
    Japan Council of Performers' Organizations (GEIDANKYO)
    Relevant Articles
    of the Copyright Law
    Article 21 on the economic right of reproduction of authors
    Article 91 on the economic right of reproduction of performers



    Q 4-3 The City Office organized a video contest on the theme of "family", however, all the submitted video tapes included some sounds recorded from TV or radio programs. Is there any problem of copyright?

    Answer

    It is permissible to reproduce, without authorization, a musical work as background music in a home-made video to be used and enjoyed within a household, based on the exception provided for in Article 30 of the Copyright Law. However, when the video tape is submitted to the City Office for the contest, the purpose of the reproduction exceeds the range of private use, and it constitutes copyright infringement. Also, if the video tape was made for the contest from the beginning, rather than for private use, the inclusion (reproduction) of background music needed the authorization of the right owner because it was not for private use.

    In the case mentioned in the question, as it is not the City Office that made the unlawful copy of music, the City may not be accused for the infringement. However, considering the possibility that such a video tape with infringed music is selected to be awarded, there should be some efforts made by the City Office. For example, it is often indicated in the explanation for the applicant that preexisting works should not be used or that the applicant should take all responsibility for copyright contracts for authorization, and this is an example of such efforts. However, in the case of the latter, it may be appropriate to let the applicants know how to make such contracts.

    As to the above case of the inclusion (reproduction) of music in TV or radio programs, the relevant right owners, from whom the authorization should be obtained, are the composer (author) of the music, the performers who sang or played instruments, the phonogram producer if the music came from a CD, and the broadcaster. Among them, as to the contract with the composer, an authorization should be obtained directly from the copyright owner or through JASRAC or other collective societies of musical works. For other right owners, authorization contracts should be made individually with each right owner, however, it is not always easy, and moreover, it is sometimes impossible to obtain authorization for overseas music and CDs.
    To sum up, as long as a contest for amateurs is concerned, it should be better to set a condition that no preexisting work of others should be used.

    Contact Point
    for Further Information
    Japan Society for Rights of Authors, Composers and Publishers (JASRAC)
    Japan Council of Performers' Organizations (GEIDANKYO)
    Recording Industry Association of Japan (RIAJ)
    Relevant Articles
    of the Copyright Law
    Article 49 on uses of copies made by exceptional provisions for other purposes
    Paragraph (1), Article 30 on the exception for reproduction for private use

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