6. Cable TV
| Q 6-1 | The city has a cable TV system and provides various programs, charging fees, including live transmission programs of the municipal Assembly's sessions as well as the educational TV programs received. Is there any problem of copyright? |
Answer
A number of right owners are involved in a TV broadcasting program as has been explained in Q 3-1. For example, in the case of an educational program, it seem to be related to such right owners as the experts who spoke in the program (literary works), the composers who created the background music (musical works), the performers who played the music, and the broadcaster itself.
These right owners are granted, in terms of their works, performances and broadcasting programs, not only the rights of reproduction mentioned in Q 3-1 but also the rights of public transmission, which also covers the act of wire diffusion. (The simultaneous retransmission by wire diffusion of a performance within a broadcasting program is not covered by the performer's exclusive right but remuneration right.) Therefore, to transmit a preexisting TV program through the city's cable TV system, all such rights of all the right owners should be cleared by contracts beforehand in principle.
It is "in principle" because there is an exception provided for in the Copyright Law, which stipulates in its Paragraph (2), Article 38 that it is permissible to diffuse by wire simultaneously (without reproduction) a work already broadcast for non-profit-making purposes and without charging any fees to audience or spectators. "Fees" here means any money, regardless of how it is called, to be paid for the provision of the programs. In the case of the question, in which receiving fees are charged, this exception does not seem to apply unless the fees are only for the maintenance of the system and never for the reception.
Moreover, based on the Wire/Wireless Broadcasting Law, the wire/wireless broadcasting organization which is licensed by the government should obtain the approval of the first broadcaster in order to simultaneously retransmit its programs. This domestic regulation by the government applies independently from the internationally approved private right of broadcasters granted by the Copyright Law. This way, cable television organizations anyway should obtain the approval of the broadcaster for simultaneous retransmission. All the first broadcasters in Japan approve the simultaneous retransmission by cable television under the condition that the original program should be retransmitted without any change or deletion, and therefore, such a partial retransmission as mentioned in the question is not approved.
The retransmission of a broadcasting program after recording (reproducing) would be still more difficult because the rights of reproduction of all the relevant right owners should be cleared.
| Relevant Articles of the Copyright Law |
Article 23 on the economic right of public transmission |
|---|---|
| Article 92 on the economic right of broadcasting and wire diffusion of performers | |
| Article 94bis on the remuneration right of performers for the retransmission of live performances in broadcasting by wire diffusion | |
| Article 99 on the economic right of wire diffusion of broadcasters | |
| Paragraph (2), Article 38 on the exception for the simultaneous retransmission of received TV programs by wire diffusion for non-profit-making purposes | |
| Article 11 of Wire/Wireless Broadcasting Law |
| Q 6-2 | The city ordered a video for tourism advertisement to a video company, and its economic rights were transferred to the city by contract. The video is now transmitted by the city's cable TV system. Is there any problem of copyright? |
Answer
It is necessary to understand the nature and meaning of the contract to transfer the economic rights. Such a video tape for tourism advertisement corresponds to a cinematographic work under the Copyright Law. When the authors have undertaken to participate in its production by a contract with the maker, the economic rights belong to the video company, however, if they have been transferred to the city, they are now owned by the city. Also, if all the economic rights have been transferred to the city, it can carry out any exploitation of the video including presentation to the public, reproduction of tapes, distribution of the DVDs to the public, wire diffusion by the cable TV system, and so on.
However, such a video (cinematographic work) usually contains a number of other works reproduced or adapted in it, such as music, scenarios, original novels, and so on, and the copyright of such works are owned by each author. Therefore, the transfer of the economic rights in terms of the video as a whole does not mean that the city has all the relevant rights of the video (including the rights of the components within it).
Usually, the video company makes contracts with such right owners so that the video could be used for the advertising purpose, to some extent, without further authorization. It may also be possible that some components within the video, such as the scenario, had been made by an employee of the company and the economic rights have been transferred to the city. However, transmission through the cable TV system may not have been included in such contracts or other arrangements. It is necessary to obtain further authorization of the relevant right owners at least in terms of the music and scenario, for which collective societies are established.
Therefore, when ordering the creation of a video, all possible ways of uses in the future should be included in the first contract, and it is much more important than obtaining the economic rights of the video as a whole. Actually, the specialized video companies scarcely transfer all the economic rights.
| Contact Point for Further Information |
Writers Guild of Japan |
|---|---|
| Japan Writers Guild | |
| Japan Society for Rights of Authors, Composers and Publishers (JASRAC) | |
| Japan Association of Audiovisual Producers | |
| Relevant Articles of the Copyright Law |
Article 16 on authorship of cinematographic work |
| Paragraph (1), Article 29 on ownership of economic rights in cinematographic works |
| Q 6-3 | The city is transmitting by its cable TV system old documentary films produced before WWII, which are preserved in the city library, after copying them in video tapes. Is there any problem of copyright? |
Answer
The act of copying a film to a video tape corresponds to reproduction under the Copyright Law. Also, transmission through the cable TV system is public transmission. It is necessary, in principle, to obtain the authorization of the author in order to reproduce and/or transmit to the public works of authorship protected by copyright.
The point in the question is whether the films are still protected by the Copyright Law. The present Copyright Law provides for that the term of protection of cinematographic works continues to subsist until the end of a period of 70 years following the making public of the work, or the creation of the work if it has not been made public within a period of 70 years following its creation. In the case of a cinematographic work, it is "made public" when its copies have been reproduced and distributed by the right owner or with his/her authorization, or when it has been presented or transmitted to the public by the right owner or with his/her authorization.
According to the above provision on the term of protection, if a film was created but was not made public, being made open to the public just before the expiration of the 70 years, the total term of protection will be theoretically 140 years. Therefore, even though the films were made before WWII, their copyright may not have ceased to exist. However, the old Copyright Law, which was in force up to 1970, provided for that the term of protection of documentary films was up to 10 years after the publication (or up to 10 years after the creation, if not published), which was prolonged to 13 years. As there are some transitional provisions from the old Copyright Law to the present Copyright Law, it is sometimes quite difficult to know the term of protection of a very old film. Therefore, the crucial facts in terms of such films, e.g. the time of creation, whether published or not, whether made public or not, etc. should be checked and confirmed, though it is not likely that the films mentioned in the question are still protected by copyright.
Another problem is how the library obtained the films. If they were sold in the market in an ordinary way, there will be no copyright problem in terms of its reproduction or public transmission unless the copyright still subsists. However, if they were donated by someone, the contract or any other agreement at the donation should be checked and respected. Even if the term of protection by copyright has expired, it is possible that such contract in the past as that to restrict certain uses may continue to be valid. The library should always pay attention to how its materials were obtained.
| Contact Point for Further Information |
Japan Association of Audiovisual Producers |
|---|---|
| Relevant Articles of the Copyright Law |
Paragraph (1), Article 4 on the definition of making public |
| Paragraph (1), Article 54 on the term of protection of cinematographic works |