Case Study1 Formal Education & Copyright

    The recent and rapid development of internationalization and information technologies is making an increasing number of people concerned and interested in copyright issues, and an increasing number of books on the outline of the Copyright Law and copyright systems are being published by various publishers and organizations.

    Such books are widely used by a number of experts and practitioners working on copyright businesses in general, however, one should pay attention to the fact that not only such experts but also many other people now need knowledge and information on copyright rules. Some of them say, for example, "I now need to learn just this point and aspect of the copyright rule rather than every corner of the copyright legislation and systems." Some others say, "I would like to know the relationship between copyright and my business." This means that new types of introductory and explanatory booklets are needed, which possibly take a different approach to copyright rules and knowledge from the pre-existing copyright books.

    The Copyright Research & Information Center (CRIC) planned to publish a series of booklets on case studies with a view to responding to such needs. This booklet is the first Volume of such booklets first published in March 1993 and revised continually, which was targeting formal education teachers who need some knowledge of copyright rules relevant to teaching practices.

    The booklets of this Case Study Series are continually published every year, so far up to Volume 3, taking up various issues and aspect of copyright systems, cooperating with relevant experts and the JCO (Japan Copyright Office) of the Government. We do hope that the present booklet will contribute to the further understanding of copyright systems in the schools of this country.

    CRIC (Copyright Research & Information Center)

    TABLE OF CONTENTS


    Q1. Are school pupils and students also granted copyright?

    Answer

    School pupils and students are also granted copyright. Copyright is granted to anyone who created such works as novels, music, paintings, films, pictures, computer programs, etc. A work should have creativity/originality to be protected by copyright, however, its artistic, academic or economic value has nothing to do with the protection.

    Therefore, most of the works created by pupils and students, e.g. a picture drawn by a pupil in the art class, an essay written by a student in the language class, a diary written by a child at home and a letter written by a kid and sent to his/her friend, are all protected as copyrighted works.

    Copyright in the sense of "author's right" (excluding neighboring rights) consists of "moral rights" to protect spiritual interests and "economic rights" to protect economic interests of the creator, and they are classified as follows.

    copyright (author's right)
    moral rights economic rights
    the right of disclosure
    the right of the indication of authorship
    the right of integrity
    the right of reproduction
    the right of public performance
    the right of public display
    the right of public transmission
    the right of public communication by receiving devices
    the right of public recitation
    the right of public exhibition
    the right of ownership transfer
    the right of lending
    the right of distribution (cinematographic works only)
    the right of adaptation
    the right of the exploitation of derivative works

    *The act of “reproduction” indicated in the above table and sentences includes not only photographic or visual copying but also reproduction by digital storage and handwriting. Such a misunderstanding as “Unauthorized copying by a machine is not okay but reproduction by handwriting is okay.”

    For example, when a school is planning to publish essays written by students, it should pay due attention to the following points.

    As to the "moral rights", the author has the "right of disclosure" by which he/she can decide whether the work should be open to the public, and therefore, the school should obtain the authorization of all the students to open their essays to the public by publication even if they have been submitted to the teacher as a part of its educational activities.

    Also, the author has the "right of the indication of the authorship" by which he/she can decide whether the true name should be indicated, no name should be indicated, or his/her pen name should be indicated. Therefore, the school should confirm the intention of all the students concerned though it seems to be normal to indicate the true names in the case of students' essays.

    The author is also granted the "right of integrity", and therefore, the essays should not be modified without the authorization of the student who wrote it even if it is done to make the essay better (by the teacher).

    As to the "economic rights", the publication of the essays means first to reproduce them, and then, to distribute (to transfer the ownership) them. Therefore, the school should obtain the authorization of "reproduction" and "ownership transfer" (of the reproduced copies) in terms of all the essays.

    The relevant provisions of the Copyright Law require the above-mentioned procedures even for educational uses of the works created by pupils or students with in a school. However, with a view to facilitating the use of a lot of works created by students every day, it would be better to make a comprehensive contract between the school and (the parents of) students when they enter the school and/or at the beginning of each academic year in terms of copyright. (It can be argued that there is a tacit consent in terms of the use of the students’ works between the parents and the school as the teaching activities are to develop the students’ skills (including expression skills), however, the fact that he/she is a teacher alone does not automatically allow him/her to use and or modify the students’ works. Also, other issues/rights such as privacy of each family should be taken care of by other systems and efforts.)




    Q2. How can pre-existing works be used by teachers without authorization as teaching materials?

    Answer

    Teachers often make teaching materials for students by themselves. They also often make use of pre-existing works within their materials by copying them. The Copyright Law provides for an exception for such cases as follows:


    Article 35 of the Copyright Law
    (1)

    A person who is in charge of teaching and those who are taught in a school or other educational institutions (except those established for profit-making) may reproduce a work already made public if and to the extent deemed necessary for the purpose of use in the course of lessons, 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.


    A teacher may, for example, reproduce a pre-existing work in his/her teaching material and distribute its copies to the students for teaching, without authorization of the author, based on this provision. The term, "lesson" in the above sentence is not limited to the teaching of language, math, etc. in the classroom but covers such activities as special educational activities, moral education activities and comprehensive learning activities under the condition that they are included in the curriculum of the school. (The activity does not have to be organized based on the Course of Study (curriculum standard) of the Government, and, on the other hand, any school activity based on the Course of Study seems to correspond to the "lesson" of the Article.)

    Also, "A person ... may reproduce" does not mean that the copy should be made by the person himself/herself. This provision also applies to the case in which the person, e.g. a teacher takes the initiative and asks a school clerk to make copies. However, the case in which anyone not in charge of teaching directly, e.g. the relevant board of education, makes a number of copies and distribute them to a lot of schools and/or teachers is not covered by this exception, because the initiative to make copies is not taken by the teacher.

    Attention should be paid to the exclusion of this exception indicated in the above article, viz. any case in which the reproduction unreasonably prejudices 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.

    The following are typical cases not covered by the above exception:

    • Reproduction of a computer program for a number of computers used by students.
      (reason: the "nature" of the work)
    • Reproduction and distribution of a workbook or a drill book.
      (reason: the "purpose" of the work)
    • Reproduction to make copies outnumbering the class.
      (reason: the "number" of copies)
    • Reproduction in a book form to be used outside the teaching.
      (reason: the "form" of reproduction)

    This exception also covers reproduction for teaching materials carried out by students. Under the instruction of the teacher, students may reproduce pre-existing works, e.g. those downloaded from the Internet through the students' own learning activity, and distribute the copies within the class without authorization of the authors. The conditions to be fulfilled are the same as the case of the teacher.

    Any copy made by this exception should be accompanied by the indication of the source, viz. the title, the name of the author, etc., based on the standard practice. Also, the authorization of the author is needed to use the copies made by this exception for other purposes.

    *※ To clarify the meaning of the term “reproduction” in this question, please consult the explanation of Q1.




    Q3. Is authorization needed to use pre-existing works for public performances at a school festival?

    Answer

    Playing music and/or dramas at a school festival and other similar activities is covered by the right of "public performance", and therefore, of the author is needed in principle.

    However, if all of the following three conditions are fulfilled, such an act of public performance can be done without of the author.

    1. The public performance is not done for any profit-making purpose.
    2. No admission fee is charged to the audience.
    3. No remuneration is paid to the performers.

    This exception is provided for in Article 38 of the Copyright Law as follows:


    Article 38 of the Copyright Law
    (1) It shall be permissible to publicly perform, present and recite a work already made public, for non-profit-making purposes and without charging any fees ("fees" includes any kind of charge to be imposed on the offering and the making available of a work to the public; the same shall apply hereinafter in this Article) to audience or spectators; provided, however, that the performers or reciters concerned are not paid any remuneration of such performances, presentation or recitation.

    Attention should be paid to the fact that the acts covered by this exception are limited to public performance, public presentation and public recitation, and therefore, reproduction and distribution of copies are not included. This means that the authorization of the copyright owner is needed to copy and distribute music scores or scenarios for practice. (See Q13 for concrete means to obtain the authorization.)

    By the way, if the public performance is part of the lesson of a course in a school, the reproduction of music scores and scenarios could be covered by the limitation for “reproduction to make teaching materials” (See Q2). However, attention should be paid to the last part of the relevant article of the Copyright Law (Paragraph 1, Article 35): “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.” For example, the music scores and scenarios which are published or rented for the purpose of public performance cannot be copied by the above limitation in some cases.

    To obtain the authorization easily, contact JASRAC (an ordinary body corporate) for musical works and Japan Reproduction Right Center (a public-interests body corporate) for scenarios.




    Q4. Is authorization needed to draw a picture of a cartoon character on a placard of cheer leaders at a school athletic meeting?

    Answer

    Such an act to draw a picture of a cartoon character on a placard of cheer leaders at a school athletic meeting constitutes "reproduction" covered by copyright, and therefore, it calls for authorization of the author.

    However, as has been discussed in "Q2", Article 35 of the Copyright Law provides for an exception for teachers and students to reproduce a work to be used in the course of lessons.


    Article 35 of the Copyright Law
    (1)

    A person who is in charge of teaching and those who are taught in a school or other educational institutions (except those established for profit-making) may reproduce a work already made public if and to the extent deemed necessary for the purpose of use in the course of lessons, 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.


    As "in the course of lessons" here seems to include not only regular subject lessons but also other intra-curricular school activities (e.g. special educational activities such as school cultural festivals and school athletic meetings) which are parts of the curriculum. Such lessons and activities do not necessarily have to be clearly provided for in the Course of Study (the governmental standard of school curriculums), and at least those organized and carried out based on the Course of Study seem to be included in the "lessons".

    Therefore, if the athletic meeting is an intra-curricular activity and the said reproduction by the students is necessary for the achievement of the educational purpose, this exception seems to apply to it. The judgment whether the activity is "necessary for the achievement of the educational purpose" should be done, considering its aim and means of as well as the nature of the school itself, and therefore, there is no concrete criteria for this judgement provided for. (It seems possible and appropriate that those engaged in school education and right owners organizations discuss for the establishment of a guideline.)

    It is the school side that is planning to this exception, and therefore, when there is any doubt of copyright infringement, the school should keep accountability of the unauthorized use at least by preparing persuasive explanations to show the appropriateness of the unauthorized use, taking into account the purpose and contents of the special educational activity.

    As this exception applies only to the purpose of use in the course of "lessons", the placard should not be kept after the athletic meeting for other purposes such as simple display.




    Q5. How can cooperative teaching between schools through the Internet be operated without copyright infringement?

    Answer

    In the course of distance education, it often happens that the teaching materials (works) used in the main teaching site are transmitted to the satellite classrooms through such networks as the Internet. If the receivers constitute the "public", this act of transmission is considered as "public transmission". Also, performances of music and dramas are sometimes transmitted to the satellite classrooms for learning. For such cases, the Copyright Law provides for an exception as follows:


    Article 35 of the Copyright Law
    (2) In the case of the exploitation of a work already made public, by offering or making public the original or copies of such work to those who take lessons directly in the course of lessons in educational institutions mentioned in the preceding paragraph, or in the case of the exploitation of such work by publicly performing, presenting or reciting it in accordance with the provision of Article 38, paragraph (1) in the course of such lessons, it shall be permissible to make the public transmission (including the making transmittable in the case of the interactive transmission) of such work intended for reception by those who take lessons at the same time at a place other than that where such lessons are given; provided, however, that such transmission 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 form of transmission.

    For example, when a distance education program is carried out between the main classroom (in elementary school A) and satellite classrooms (in a number of other schools), transmitting from the main classroom to the satellite classrooms the pictures shown in the main classroom, the copies of newspaper articles distributed in the main classroom, etc. constitutes "public transmission". However, this act of public transmission does not calls for the copyright owner because of the above limitation clause. Also, authorization is not required in terms of the performance of music, the recitation of language text books, etc. taking place in the main classroom and transmitted to the satellite classrooms though such transmission. (see Article 38 (1) of the Copyright Law and Q3)

    The term, "lesson" here is not limited to the teaching of language, math, etc. in the classroom but covers such activities as special educational activities, moral education activities and comprehensive learning activities under the condition that they are included in the curriculum of the school. (The scope of "teaching" is not limited to the activities directly stipulated in the Course of Study, and those planned and carried out based on the Course of Study, which is the nation-wide standard of school curricula, can be considered as "teaching" at school.)

    When a distance education program is carried out by only two schools, connecting elementary school A and B, the transmission between elementary school A and elementary school B is not "public transmission" but "point-to-point transmission", which is not covered by copyright. However, if the works transmitted from elementary school A is further transmitted to a number of personal computers used by pupils in elementary schools B, this act of transmission from elementary school A to the computers in elementary school B constitutes "public transmission". Also in such a case, the above-mentioned exception applies.

    However, attention should be paid to the fact that three conditions are included in the phrase, "those who take lessons at the same time at a place other than that where such lessons are given" in the above Article as follows:

    - The lessons should be taken "at a place other than that where such lessens are given".
    The lessons, therefore, should be given both at the main site and other sites so that a work may be transmitted without authorization. For example, such a case as the transmission is made from the main site with only the instructor (without any learners there) to other sites with learners does not correspond to the case of this exception.
    - The transmission should be made to the learners who take the lessons "at the same time".
    The lessons, therefore, should not be pre-recorded, and such a case as a lesson given and recorded in elementary school A is transmitted later to other elementary schools does not correspond to the case of this exception.
    - The transmission should be made to "the learners who take the lessons" of the school.
    The transmission which can be received by those who do not take the lessons (for example, the general public) does not correspond to the case of this exception.
    Also, attention should be paid to the phrase, "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 form of transmission".
    It is, therefore, out of the scope of this exception to transmit such works as drill books and educational computer programs, which are to be purchased by individual learners.

    In addition, when such transmission unreasonably prejudices the interests of the copyright owner in the light of the nature and the purpose of the work as well as the form of transmission, this exception does not apply. For example transmission of such supplementary learning materials as drills and so-called education software which are publicly sold to be bought by each individual learner is not covered by this exception. It would prejudice the interests of the copyright owner to buy only one copy of such a work and transmit it to the public, in the light of the purpose of the work. Also, transmitting works to the public including those who do not take the course after encoding and/or using ID and pass words would prejudice the interests of the copyright owner in the light of the form of transmission. These cases are not covered by this exception and therefore call for the authorization of the copyright owner. For the details of the means to obtain the authorization, please see Q13.




    Q6. Can a pre-existing work be used in an entrance examination of a school without authorization?

    Answer

    A number of pre-existing works are used in entrance examinations and regular term examinations such as those of language and music. Using such works with the authorization of the authors beforehand would damage the secrecy of the examination. Therefore, the Copyright Law provides for the following exception.


    Article 36 of the Copyright Law
    (1) It shall be permissible to reproducer, or make the public transmission (excluding the broadcasting or wire diffusion, and including the making transmittable in the case of the interactive transmission; the same shall apply in next paragraph) of, a work already made public as questions for an entrance examination or other examinations or knowledge or skill, or such examination for a license, to the extent deemed necessary of such purpose; provided, however, that such transmission 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 form of the transmission.
    (2) A person who makes such reproduction or public transmission for profit-making purpose shall pay to the copyright owner compensation the amount of which corresponds to an ordinary rate or royalty.

    For example it is not needed to obtain the authorization of the copyright owner, by this article, to use pre-existing literary works, newspaper columns, music pieces, artistic works, etc. for such examinations by reproduction or pubic transmission. However, attention should be paid to the following points.

    Firstly, as to reproduction for examinations, the scope of the exception to reproduce pre-existing works is limited to "the extent deemed necessary of such purpose". Therefore, the reproduction of any part irrelevant to the examination is not permissible under this exception.

    Secondly, using this exception, one should be careful for moral rights of the author because the above exception applies only to the economic rights of the author, excluding moral rights. Therefore, the pre-existing work used for an examination should not be modified unless the modification is unavoidable in the light of the purpose of the examination. The scope of the cases in which modification is "unavoidable" should be discussed in each case as it is difficult to establish any general criteria. However, it is a widely shared idea that the modification needed to request to fill the spaces between brackets or to rearrange separated sentences to the original order are accepted as "unavoidable". On the other hand, rewriting of difficult parts or deleting some parts without notice probably constitute infringement of the right of integrity. It should also be noted that the indication of the source is obligatory in the case of this exception, and therefore, at least the name of the author should be indicated appropriately unless the question of the examination itself is to ask the name of the author and/or the work.

    Thirdly, as to public transmission for examinations, this exception was recently expanded from reproduction to pubic transmission as the distance examination through the Internet is increasing and a similar exception as the case of reproduction is needed to keep the secrecy of such examinations.

    Fourthly, broadcasting and wire diffusion are excluded from the scope of this exception, and therefore, the applicable cases are a) interactive transmission of examination questions through such networks as the Internet and b) similar transmission in a manual way (e.g. facsimile) which is carried out upon request by the receiver.

    Fifthly, this exception does not apply in the case of transmission which unreasonably prejudices the interests of the copyright owner in the light of the nature and the purpose of the work as well as the form. A typical example of such a case is to store the examination questions in a server continuously so that they may be transmitted to those who are not involved in the examination. (i.e. any member of the public may access and see them)

    Sixthly, examinations are implemented not only by school and other non-profit-making organizations but also by private companies. The authorization of the author is not needed beforehand also in such cases, however, compensation the amount of which corresponds to an ordinary rate or royalty should be paid to the copyright owner afterward when the examination is done for profit-making purposes.




    Q7. How should a school cope with a publisher that seeks for an authorization to publish a book of all the entrance examination questions of the school through the past five years?

    Answer

    To consider this issue, it is first needed to check whether the questions concerned are copyrighted works or not. Simple questions of calculation, spelling, etc. are hardly considered as copyrighted works. However, even if they are not copyrighted works, the set of the entrance examination questions as a whole may constitute a copyrighted "compilation" if the contents (questions) are selected and/or arranged in an original way. Also, some questions are considered as copyrighted works, e.g. those including the explanation of the situations/conditions to be considered to answer them.

    When the questions themselves and/or the set of the questions as a whole constitute copyrighted works, the school which made the questions is the author. The school, therefore, may give an authorization to the publisher, possibly with some conditions, or refuse the proposal as the copyright owner.

    Also, the school should check whether pre-existing works are incorporated in the questions. Because of the Article (Article 36) which provides for an exception for examination questions, the school may make use of pre-existing works in examination questions, however, publishing the questions as a book is out of the coverage of this exception. Therefore, the school is not in the position to authorize the further use of such parts.

    In such a case, the school should, for example, give authorization to the publisher under the condition that the publisher obtains necessary authorization from all the relevant copyright owners.

    The same applies to the case that the school itself publishes a book of the questions afterward. When the school has all copyright in terms of all questions it can freely publish the book, however, if there are any questions that contain copyrighted works of others the school should obtain the authorization of all relevant right owners. The act of "carrying out an examination" is totally different from that of "publishing the questions afterward", and therefore, the exception of Q6 does not apply to the latter.

    Therefore, discussions are going on between an organization of school education and that of relevant authors to establish a system by which it will be easier to use the works, which have been used in entrance exams, in publications and/or websites by simple procedure and low royalty.




    Q8. What should a school do for the sound recording, video shooting, photo taking, publishing of the speech which is planned for the next school seminar, inviting students and community people?

    Answer

    A speech is also a copyrighted work even if it is not fixed, and the speaker is granted copyright. Not only famous speakers but also ordinary people are granted copyright, and the organizer of the seminar should obtain the speaker's authorization beforehand in terms of all expected ways of future use of the speech.

    For a school inviting an outside speaker for a speech on a specific issue, it is necessary to offer clear conditions when the school invites the speaker in order to avoid problems in the future.

    For example, it sometimes happens that a school invites a speaker just for giving a speech on the spot, but later, as the speech was very good and became popular, plans to distribute copies of the sound recording of the speech and/or booklets made from the recording.

    This may deprive the speaker of other opportunities to be invited in the future, and therefore, he/she may say that such acts were not included in the contract and constitute copyright infringement.

    Also, a number of organizers of such a seminar still have the following misunderstandings, which often cause more confusion and emotional problems between the organizer and the speaker.

    a) The speaker is paid, and therefore, copyright is owned by the organizer.
    b) The seminar was for a non-profit-making purpose, and the copies were distributed freely, causing no economic damage to the speaker.
    c) Any work can be used if the source is indicated.

    The above are all false, and it always calls for the authorization of the author beforehand to carry out such acts as sound recording of the speech, reproduction of the recording, publication of the speech and public transmission of the speech (live or recorded). Also, if the organizer would like to carry out any unexpected use of the speech, additional authorization is needed.

    Although the act to take pictures of the face/body of the speaker is not covered by copyright, the organizer should pay attention to the speaker's rights of privacy and publicity, which are gradually recognized by case laws. To obtain authorization beforehand, explaining the purpose and the way of use, is the best strategy also for such rights.

    For further information on the concrete ways of contracts for seminar speeches, please consult the "Copyright Contract Assistance System for All" in the website of the JCO (Japan Copyright Office).




    Q9. If a company is selling a teaching content for computer education which is similar to the one created beforehand by a teacher, what will happen to the copyright of the teacher?

    Answer

    This question is on the relationship between a creator who made a work based on an idea and another creator who later made another work based on a similar idea. However, "idea" is not protected by copyright.

    As the use of a computer prevails among a number of people, school teachers are now using not only computer-based teaching contents sold in the market but also those which are made by them.

    Such latter teaching contents are also protected as works like novels and music, and therefore, the teacher (or the employer) is the author, who is granted copyright.

    However, as the Copyright Law protects "expressions" created by the author's originality, the "idea" which lies behind the creator's expression is not protected. Therefore, for example, if someone makes a teaching content for mathematics to explain a theory by some animated images, the "functions" of which are similar to another pre-existing content based on a similar "idea", the former does not constitute any infringement of copyright unless the "expressions" of the latter are copied.

    However, it should be rare that the presented animated characters/images are almost the same but the expressions of the programs are totally different, and therefore, the similarity of the expressions of the programs may be judged easily by comparing the images on the display.




    Q10. How can an article of a newspaper or a journal on education issues be copied and distributed for a teachers' meeting at school?

    Answer

    Some people may think that, in order to reproduce an article of a newspaper or a journal, it is needed to obtain the authorization of the relevant company/publisher, however, it is not always true. The majority of newspapers and journals correspond to "compilations", and such compilations made with creativity in terms of the selection or arrangements of their contents are protected as works of authorship. Also, when the contents incorporated in the compilation are also works the copyright of the contents should be considered separately from that of the compilation as a whole.

    This means that, on the one hand, the contents such as articles and pictures are protected independently, and on the other hand, the compilation is also protected if it has been made creatively in terms of the selection or arrangement of such contents.

    In the case of the question, the work to be reproduced seems to be a single article on education issues, and it is not necessary to consider the copyright of the compilation (the newspaper or journal as a whole). Therefore, the authorization for reproduction and distribution should be obtained only from the right owner of the article concerned, who is in many cases its author (the person who actually wrote it), however, in some cases the right owner may be the employer or someone who has purchased the right.

    Such an act of reproduction seems to be done frequently not only for teachers' meetings at school but also in many other working places including government offices and private companies. In many cases what is reproduced is a single work incorporated in a compilation like a newspaper or a journal (not the compilation as a whole) and the number of copies is very small, and therefore it is too troublesome to look for and contact the right owner as well as to negotiate for the authorization each time such reproduction is done. To cope with this problem a new system was established by which the rights of a lot of copyright owners, whose works are incorporated in various publications, are entrusted to a collective society and schools, government offices and private companies, etc. can easily obtain the authorization from it.

    In more concrete terms, those who would like to reproduce a work within a newspaper, journal, book, etc. frequently can have a comprehensive contract (by which the authorization for each act of reproduction is not needed) with the Japan Reproduction Rights Center (a public-interestrs corporation), which is the collective society of such works. This center also provides various alternative contract ways, depending on the needs and copying forms of diverse users. Further information is available in the website of The JCO (Japan Copyright Office).


    Q11. What should a school do as copyright education?

    Answer

    As the use of computers and the Internet prevails, thanks to the development of information technologies, copyright education is becoming more and more important to all people.

    Also, an increasing number of private firms are starting copyright education within the framework of law-abiding education together with other issues such as environments and privacy. Such a movement is not limited to the firms engaged in the production and distribution of copyrighted works as merchandise but other firms not directly related to copyrighted works are now aware of the importance of copyright because any copyright infringement would heavily damage the social reputation of the firm.

    These movements and social development should also be reflected in school education. As has been explained in this booklet, various acts (e.g. reproduction of pre-existing works as teaching materials) are covered by exceptions provided for in the Copyright Law and can be carried out without authorization of the author, however, the conditions to apply such exceptions should be learnt by all teachers. Also, it is indispensable to know the general/regular rules in the Copyright Law in order to apply the exceptions. The general/regular rules apply, in principle, to all the people and firms and they should be learnt by everybody.

    The basic contents of copyright education at school are as follows:

    a) What are copyrighted works?
    b) How is copyright granted? (non-formality rule)
    c) What acts call for authorization of the author? (contents of rights)
    d) How long does copyright last? (term of protection)

    The knowledge of such basic issues will help to make use of the exceptions appropriately because this way people can learn that any use of works calls for authorization in principle and exception provisions apply only to limited cases under strict conditions.

    Copyright education calls for still other considerations because the significance of the legal system to protect intellectual properties, i.e. the value to protect intangible assents, is difficult to be understood by children as it is of highly abstract nature. Also, it does not seem necessary for children to learn the provisions of the Copyright Law in a systematic manner. It would be rather appropriate to make proper arrangements, which was planned to be implemented gradually in elementary schools from 2011, lower-secondary schools from 2012 and upper-secondary schools from 2013, in such classes as home economics and craft of lower-secondary school and information of upper-secondary school, so that the students may learn, through practical experiences, that any work is created by the author's spirit and should not be insulted (moral rights) and that copying a work is the same as borrowing a thing, both of which need authorization (economic rights). By this kind of approach, copyright education can be done in teaching and learning of all subjects and activities at school. (It is not necessarily appropriate to teach children, within the framework of copyright education, such legal issues as concrete and detailed condition to apply exceptions mainly used by teachers.)

    As has been described, copyright education has a number of aspects, and therefore, appropriate teaching methods and materials should be developed for various purposes and learners as well as different positions of the people concerned.

    A teaching material, which can be used to raise the interest of pupils/students in copyright in various occasions during the teaching of relevant subjects in elementary, lower-secondary and upper-secondary schools ("Copyright Education for Five Minutes") has been developed and can be obtained through the Internet.

    Also, some teaching materials are available in the website of the Agency for Cultural Affairs.




    Q12. How has the Copyright Law been amended through the past ten years? How should the Copyright Law be taught at school?

    Answer

    The Copyright Law has been amended frequently with a view to coping with the development and diffusion of ICT (Information and Communication Technologies) as well as the relevant international trends. Through the past 10 years the law has been amended as follows. Most of them were to strength the relevant rights or to expand the limitations/exceptions in terms of the use of works on the Internet.

    Year Major Points of Amendment
    2003

    Prolongation of the term of protection of cinematographic works(from 50 years to 70 years)

    Amendment of limitation for the use in educational institutions

    2004

    Establishment of the right of lending for books

    Amendment to prohibit parallel importation of phonograms published for commercial purpose

    Amendment for additional penal remedies

    2006

    Amendment for use by the visually disabled (interactive public transmission of sound recordings)

    Amendment of limitation for the maintenance of the server

    Amendment for additional penal remedies

    2008 Amendment of limitation for textbooks for the disabled
    2009

    Amendment for use by the National Diet Library

    Amendment of limitation for Internet auction

    Amendment to prohibit downloading of illegally transmitted contents (civil remedies)

    2012

    Amendment of limitation for incidental fixation, preparatory use for authorization and use for R&D of the use of works

    Amendment for use by the National Diet Library (interactive public transmission of materials)

    Amendment to prohibit downloading of illegally transmitted contents (penal remedies)

    2014 Amendment for electric publishing

    In the appendix of the amendment law in 2012 it was provided for that the central and local governments should take measures to develop educational activities at school and other occasions with a view to improving education to prevent downloading for private purpose illegally uploaded works so that minors may understand the importance of the prevention of the said act in all possible occasions (paragraph 2, Article 7 of the Appendix), imposing on schools an obligation to develop relevant educational activities.

    What is importance here is not only to teach the contents of each amendment but also to have children understand such essences of the copyright system as the importance to respect copyrighted works and their authors as well as the meaning of contracts. In the case that students already know the details of the legal system of copyright it might be appropriate to teach the detailed contents of the amendments as further developed learning. However, in general terms it is expected that the above mentioned basic aspects be taught first within the framework of the education of social rules of the use of information.




    Q13. What is the concrete way to obtain the authorization of relevant copyright owners?

    Answer

    Understanding copyright systems makes people aware of the necessity to have the authorization of the right owners to make use of any copyrighted works including the use for non-profit-making purposes.

    Obtaining the authorization means having a contract with the right owner in terms of such use as reproduction, and under the Japanese civil law a verbal contract without written agreement is also valid and lawful if the both parties have reached agreement.

    However, such a the contract is for a copyrighted work, which is an intangible property, and there may be a variety of ways of use, and therefore, it is much better to make a written contract.

    The contract should contain such items as the way (reproduction, public performance, interactive transmission, etc.), term and venue of use as well as any possible secondary use (e.g. interactive transmission after initial reproduction) and other conditions (purpose/nature of the use, the amount of royalty, etc.). For further information on the concrete ways of contracts, please consult the "Copyright Contract Assistance System for All" in the website of the JCO (Japan Copyright Office).

    A number of right owners of works which are used frequently by a lot of people entrust their rights to collective societies. In such a case the authorization can be obtained through the relevant collective society. Some of such collective societies are registered in the Government (the Japan Copyright Office) and the relevant legislation provides for that they should not refuse any proposed use. While independent copyright owners may personally refuse any offer of authorization, the designated collective societies never refuse the authorization, which is convenient for users. For example, such acts as recording a school chorus competition and distributing its DVD to the parents for memory, in principle, call for the contact and negotiation with all the authors of the played pieces of music. However, the authorization can be obtained quite easily in terms of almost all such pieces by a contract with JASRAC (an ordinary body corporate). For further information on other collective societies, please consult the website of the Japan Copyright Office.

    Apart from the above ways it would be a good idea to make an agreement between right owners' organizations and those of educational users in order to facilitate the use of works without complicated procedures. To make/develop such agreements it would be needed for those concerned with formal education to have better understanding of copyright systems, to establish mutual reliability, and to make further efforts to realize the balance between the "protection of copyright" and the "facilitation of use".

    For the cases in which the relevant right owner cannot be found even by considerable efforts, a system of compulsory license is provided for in the Copyright Law (Art. 67-70), by which a license given by the Commissioner of the Agency for Cultural Affairs followed by a claim from a user make it the use lawful. This system was recently amended by which the use in the period between the claim and the license became possible by depositing mortgage money.




    Q14. Is there any organization that provides information on copyright issues?

    Answer

    There are several organizations which provide relevant information and consulting services to the general public. The most comprehensive one is the following:

    Major NGOs related to Copyright and Neighboring Rights
    CRIC (Copyright Research and Information Center)
    For other organizations, consult the website of the JCO (Japan Copyright Office)

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