Business in local authority and copyright
    Chapter 5 The Internet and Web Pages

    5. The Internet and Web Pages

    Q 5-1 To attract tourists, some poems of an author, who is from the city, as well as the painting on the wall of the City Office building are uploaded in the City's web page. It is for the purpose of the public interests, but is there any problem of copyright?

    Answer

    A poem corresponds to a literary work protected by copyright. In the case of paintings on the wall, some may not correspond to works of authorship, but those with sufficient creativity correspond to artistic works. It should also be noted that the owner of copyright may not be the owner (the city) of the building. Unless the copyright has been assigned by a contract to the city, all the rights are owned by the author.

    The term of protection of works starts, in principle, with the creation of the work and continues to subsist until the end of a period of 50 years following the death of the author. Therefore, the works the terms of protection of which have already expired, including poems and paintings, can be used freely. In the case of the works created by Japanese authors, those works created by the authors who passed away before WWII are not protected by copyright any more. However, as to the works created by foreign authors, there are some exceptional cases in terms of the treaty relations, including the additional term of protection for wartime.

    If the poems and the painting mentioned in the question fulfill all the above conditions to be protected, viz. they have creativity; and the terms of protection have not expired yet, they are works of authorship protected by copyright. In such a case, there could be some copyright problems as discussed below.

    The act of uploading a work, such as a poem and a painting in a web page is covered by the economic rights of reproduction and public transmission of the author. Uploading usually means to store the work within the server, and this act corresponds to reproduction. Also, the act of transmitting the work from the server to the members of the public upon access is called in the Copyright Law "automatic public transmission", which is a type of public transmission.

    However, the poem and the painting on the wall mentioned in the question may differ from each other because the latter corresponds to the case that "the originals of artistic works are permanently located in open places, such as streets, and parks or at places easily seen by the public, such as the outer walls of buildings". In this case, based on Article 46 of the Copyright Law, such a work can be used in any way excluding some cases such as reproduction for commercial purposes. The uploading in a web page (reproduction and public transmission) is also covered by this exception, and therefore, permissible under the Copyright Law.

    To sum up, uploading a poem protected by copyright calls for the authorization of the author, but uploading a picture on the outer wall of the building can be used freely.

    Contact Point
    for Further Information
    Copyright Research and Information Center (CRIC)
    Relevant Articles
    of the Copyright Law
    (i), paragraph (1), Article 2 on creativity of expression
    (i), paragraph (1), Article 10 on the examples of literary works
    (iv), paragraph (1), Article 10 on the examples of artistic works
    Article 21 on the economic right of reproduction
    Paragraph (1), Article 23 on the economic right of public transmission
    Article 46 on the exception for the use of works located in open places



    Q 5-2 The city library made a database including the images of covers, the tables of contents and the digests of articles of its magazines, and uploaded them in the web page of the library. Is there any problem of copyright?

    Answer

    What should be discussed first is the nature and meaning of the act of making a database of the covers, the tables of contents and the digests of articles of the magazines. Firstly, the cover of a magazine is usually incorporates some pictures and illustrations, and they are arranged in a creative manner together with the titles of articles. Therefore, the majority of magazine covers seem to be protected either as photographic works or artistic works.

    Secondly, as to the table of contents of a magazine, simple ones do not seem to have creativity, and therefore not protected by copyright, however, those made in a creative manner in terms of the expression, arrangement or selection are protected. Therefore, it must be safer to consider that all tables of contents are protected by the Copyright Law.

    Thirdly, If the act of digesting the articles in a magazine corresponds to adaptation under the Copyright Law, namely if it is to summarize the articles so that the reader of the digest may understand what is written in the articles without reading them, it is covered by copyright of the relevant right owner.

    Fourthly, the act of making a database which includes above contents is covered by the economic right of reproduction and/or another right of adaptation. Also, the act of uploading them is covered by the economic right of public transmission. Therefore, such acts call for the authorization of all the relevant authors except for the cases which are permissible under the Copyright Law.

    Some people may think that public libraries established for the public interests should be treated differently with some privileges. There are a series of exceptions provided for in the Copyright Law, however, the above-mentioned acts are not included in such exceptions. The exceptions for libraries under the Copyright Law are the following.

    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 by 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 of 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 print or for other similar reasons.
    (iv) 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 difficult to be obtained in the market, which has been interactively transmitted to the library from the National Diet Library.
    The above exceptions are solely for the act of reproduction and there is no exception for public transmission.
    (except for public transmission by the National Diet Library to other libraries for the purpose of providing library materials which are difficult to be obtained in the market to be used for the public in such libraries.)
    Therefore, it is necessary for the library to obtain the authorization of the relevant authors to digest the articles in magazines, to reproduce the digests, the covers and the tables of contents as a database, to reproduce them in the web page, and to transmit them through the Internet.
    Contact Point
    for Further Information
    Japan Magazine Publishers Association (JMPA)
    Each magazine publisher
    Relevant Articles
    of the Copyright Law
    (vi), paragraph (1), Article 10 on the examples of artistic works
    (viii), paragraph (1), Article 10 on photographic works
    Article 12 on compilations
    Article 21 on the economic right of reproduction
    Article 27 on the economic right of adaptation
    Article 23 on the economic right of public transmission
    Article 31 on the exception for libraries, etc.



    Q 5-3 To provide information on the prefecture’s policies, such materials as the maps of urban planning and the proceedings of the prefectural assembly sessions are uploaded in the prefecture’s web page. Is there any problem of copyright?

    Answer

    The maps of urban planning are protected as a figurative works under the Copyright Law, however, the point is who is the author. If the maps was drawn by the officials of the prefecture as "a work made by an employee in the course of his duties" under the Copyright Law, the prefecture is the author, holding all the moral and economic rights. However, if the making of the plan was ordered to an outside expert or organization, the creator is the author. Therefore, if the prefecture would like to have the economic rights, a contract of the assignment of the economic rights should be made between the prefecture and the creator. As there must be a number of maps and other works created through the process, it seems advisable to make a comprehensive contract from the beginning, which stipulates, for example, "All the economic rights under the Copyright Law of all the works created through the process, including those provided for in Article 27 and 28, shall be transferred to the prefecture." By making such a contract, the economic rights can be considered to be owned by the prefecture.
    As to the proceedings of the prefecture assembly sessions, paragraph (2), Article 40 of the Copyright Law provides for, "It shall be permissible to reproduce in the press, broadcast or diffuse by wire or retransmit simultaneously through broadcast by input-type interactive transmission speeches, which are delivered in public by organs or the State or local public entities to the extent justified by the informatory purpose," however, public transmission through the Internet (interactive transmission) is not included in this exception.

    Therefore, to obtain the authorization, the author of the proceedings should be identified. If the proceedings are composed of detailed records made through shorthand or sound recording, viz. the contents can be considered as the reproduction of what have been said in the assembly sessions, all the members, the chair and other speakers are co-authors of the whole work. Some people may argue that the part spoken by the members and prefecture officials are "works made by an employee in the course of his duties" and if so, the prefecture has the authorship. Also, it is possible to argue that the members implicitly agreed to transfer the economic rights to the prefecture by participating in the sessions, the proceedings of which were supposed to be open to the public by all means, except for the cases of closed-door sessions.

    If the proceedings are summaries of what were actually spoken which were made by an official of the prefecture, the official is the creator of the adapted (derivative) work. In such a case, the proceedings seem to correspond to "works made by an employee in the course of his duties," too, and the copyright belongs to the prefecture.

    The act of uploading a work in a web page is covered by the right of reproduction and the right of public transmission, but in the case of the said prefecture maps and the proceeding, there seems to be no copyright problem.

    Relevant Articles
    of the Copyright Law
    (ii), paragraph (1), Article 2 on the definition of author
    (vi), paragraph (1), Article 10 on the examples of figurative works
    (xii), paragraph (1), Article 2 on the definition of joint work
    Article 15 on works made by an employee in the course of his duties
    Article 21 on the economic right of reproduction
    Article 23 on the economic right of public transmission
    Article 27 on the economic right of adaptation
    Paragraph (2), Article 40 on the exception for the use of political speeches



    Q 5-4 In the city's web page, the tones and lyrics of old folk songs, together with some historical documents, are uploaded. Is there any problem of copyright?

    Answer

    Local folk songs are usually quite old and nobody knows the author(s). Also, the terms of protection of such old works have usually expired even if the authors are known. However, it is sometimes the case that, although the tones are old, the lyrics were made or added recently by a poet, or the tones were rearranged by a contemporary composer. In such cases it is possible that such a song is still protected by copyright. Otherwise, old folk songs are not protected by the Copyright Law, and therefore, they can be used in any way including copying, uploading and transmitting through the Internet.

    However, the exploitation of performances and phonograms (sound recordings) should be discussed separately. It is now possible to distribute folk songs not only as a printed score but also as actual sounds performed and recorded. In such a case, apart from the rights of the authors of the music, who created the tones and lyrics, the rights of performers and phonogram producers should be considered.

    The act of uploading a (live or recorded) performance of a folk song is covered by the right of reproduction (including fixation) and/or the right of making transmittable (available) of the performer (singer/player). Also, the act of uploading a performance already fixed in a CD is covered, in addition to the above rights of the performer, by the right of reproduction and the right of making transmittable(available) of the phonogram producer who recorded the performance (song). Also, if the souse of the performance of the folk song was broadcast, the act of transmitting it from the server upon access is covered by either the right of making transmittable, when the program is continuously inputted into the server without storage, or the right of reproduction, when the program is stored (reproduced) within the server, of the broadcaster.

    In such cases as the above the terms of protection of the performance, the phonogram and the broadcasting program do not seem to have expired. Therefore, to transmit the performance of the folk song from the web page through the Internet, although the copyright of the relevant works (tones and lyrics) seem to have ceased to exist, it is necessary to obtain the authorization of other owners of neighboring rights, i.e. the performer, the phonogram producer, and/or the broadcaster.

    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)
    National Association of Commercial Broadcasters in Japan (NAB)
    Nihon Hoso Kyoukai (NHK)
    Relevant Articles
    of the Copyright Law
    Article 91 on the economic right of reproduction of performers
    Article 92bis on the economic right of making transmittable of performers
    Article 96 on the economic right of reproduction of phonogram producers
    Article 96bis on the economic right of making available of phonogram producers
    Article 98 on the economic right of reproduction of broadcasters
    Article 99bis on the economic right of making transmittable of broadcasters



    Q 5-5 Is it permissible without authorization to upload the image of an artistic work seized by arrears of tax, which is to be sold in an Internet auction site?

    Answer

    The Internet auction, by which ordinary people can participate in auctions of various commodities, is rapidly developing, probably because anyone can participate in it both as a seller or a buyer and the style of auction attracts more people.

    Some local governments have reportedly gained much more money than expected by selling seized goods through the Internet auction.

    In such auctions on the Internet, the possible buyers, who do not see the seller or the commodity directly, cannot see or examine the offered commodity. Also, in not a few cases the guarantee of the authenticity and quality of the commodity is not sufficient.

    Therefore, it is usual the case that the pictures and images of the commodities are uploaded so that possible buyers may examine the quality. This is crucial especially in the case of auctions of artistic works such as paintings and sculptures as well as photographic works in order not only to make sure of the state of the works but also to identify them.

    However, uploading the images of copyrighted works such as artistic and photographic works without authorization of right owners constitute infringement of the rights of reproduction and public transmission.

    Also, in the cases where the right owner authorizes the uploading (reproduction and public transmission) on the one hand, it is desirable to upload a high-quality image for the Internet auction so that buyers may better see the commodities, however, on the other hand, such an authorization brings about a situation that the uploaded image itself is used for appreciation by a lot of Internet users, heavily damaging the interests of the right owner.
    To cope with such a dilemma, realizing a balance between the necessity to examine commodities and the necessity to avoid excessive damage to right owners, the Copyright Law was amended in 2009. By this amendment, it is now permissible without authorization to upload the images of such works as artistic and photographic works, in offering them in the Internet auction, under the conditions in terms of such aspects as quality and size provided for in the relevant governmental ordinances.

    This new exception applies to not only Internet auctions but also to the display in catalogue and other publications for the sale of such works.

    Contact Point
    for Further Information
    Copyright Research and Information Center (CRIC)
    Relevant Articles of the Copyright Law Article 47bis on reproduction and interactive transmission to the public for Internet auction.



    Q 5-6 Is it permissible without authorization to download a work from an Internet Website and to upload it on the intranet to share it within a working place?

    Answer

    No. Downloading (reproducing within a computer) a work for personal (for non-business purpose such as simply enjoying or learning) use is covered by the exception of personal use, and therefore the first downloading does not constitute infringement of copyright if it is done just for fun or learning. However, uploading a work on an intranet for business calls for the authorization of the right owner.
    Firstly, as to the right of transmission to the public, this right covers the act of transmission of radio communication or wire-telecommunication intended for direct reception by the public (also covering the act of making transmittable), however, the transmission within one premise is excluded (except for the transmission of computer programs). Therefore, any transmission by an intranet within one premise does not constitute infringement of the right of transmission to the public (except for that of computer programs).

    Secondly, as to the right of reproduction, the act of uploading a work in a server of intranet corresponds to reproduction, and therefore calls for the authorization of the right owner.

    Thirdly, as to the exception for the reproduction for private use, the concept of "private use" in the Copyright Law means a use "for the purpose of the user's personal use, family use or other similar uses within a limited circle", and it does not include reproduction for any business purpose. Therefore, uploading the copy of a work, which was made for personal use, on an intranet of in a working place without authorization constitutes infringement of reproduction right because such a use is out of the concept of personal use in the Copyright Law.

    The amendment of the Copyright Law in 2009 narrowed the scope of the exception for private use by excluding digital audio/audiovisual downloading of illegally transmitted works, which is carried out knowingly. This amendment (which does not apply to other exceptions) was made to cope with the increase in illegal transmission of musical and audiovisual works on the Internet. Also, another amendment of the Copyright Law in 2012 provided for that penal sanctions apply to some cases of the personal uses which are not covered by the above narrowed exceptions for personal use.

    Contact Point
    for Further Information
    Japan Society for Rights of Authors, Composers and Publishers (JASRAC)
    The Japan Writers' Association
    Relevant Articles of the Copyright Law Paragraph (1), Article 30 on the exception for reproduction for private use
    (viibis), paragraph (1), Article 2 on the definition of public transmission
    (ixquinquies), paragraph (1), Article 2 on the definition of the making transmittable
    Article 23 on the economic right of public transmission
    Article 49 on uses of copies made by exceptional provisions for other purposes
    Paragraph(3), Article 119 on knowing digital audio/audiovisual recordings of illegally transmitted works by interactive transmission

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