Digitized & Networked Society" and Copyright

    TABLE OF CONTENTS

    Q1. What is a "digitized and networked society", and what kind of characteristics does it have?

    Answer

    The recent development of digital technologies has changed the essential nature and functions of the computer from a simple calculating machine to a comprehensive information/data processing device. A variety of pieces of information are now put into computers as digital data and used with or without various forms of modification and processing. Moreover, the rapid development of telecommunication technologies such as the Internet has realized worldwide networks of computers connected to each other, and now we all can obtain a lot of information immediately from any part of the world. The present society with revolutionary developments of digital/communication technologies is now called a digitized and networked society.
    Then, what kind of characteristics does such a society have?
    Firstly, a number of different categories of works and data such as texts, sound, pictures and moving images, which used to be reproduced and used independently, now can be compiled in one single medium of fixation such as CD and DVD by digitization.
    The implication of this new phenomenon to the copyright legislation is that the boundaries among different categories of works, e.g. literary works, musical works, photographic works, cinematographic works, etc., in terms of the nature of copyright protection, might be becoming meaningless by the digitization and compilation.
    Secondly, the compiled digital contents have a kind of interactivity by which the user can freely access the components in the content which he/she needs, rather than the one-way nature in the past, with the possibility of further compilation and/or modification. The major ways of the exploitation of works used to be reproduction, rental, broadcasting, etc., in which the works were used without modification. However, in the case of digital contents, modification has become another major way of exploitation, and therefore, maintaining the integrity of preexisting works has become a serious issue, which caused various problems and controversies in terms of the protection of the moral interests of the author.
    Thirdly, the development of digital reproduction technologies brought about the advent of clone copies, which can be created quite easily. It is now quite easy to make new copies by making use of a CD-R or a DVD-RW, which are identical to the originals stored in CDs or DVDs sold in the market. Such an act of making identical digital copies is now expanding to a number of digital contents, and as such contents usually incorporate great many data and works, the unauthorized reproduction of digital contents will surely cause extremely serious damages on a number of relevant right owners.
    Fourthly, the information put into a computer can be transmitted easily to the whole world through the Internet simply by uploading it in a server. This means that the protection of copyright now should be developed in the international context rather than as an issue within each country.
    The above-mentioned newly arising problems have been discussed in the Government (the Japan Copyright Office) and a series of amendments of the Copyright Law and other measures have been taken frequently, however, a number of still other issues seem to arise in the future along with the further development of digitization and networking.


    Q2. Who is the author of the contents and computer programs which have been created by entrusting the creation of such works?

    Answer

    There are a number of works such as computer programs and contents for which the producers entrust the actual creation to outside creators. The question is on the authorship and the ownership of copyright in such cases.
    Copyright is granted automatically without any legal formality such as registration to the government (non-formality rule). Therefore, when a creator has created a work he/she automatically becomes its author and, at the same time, the owner of copyright. This is one of the most crucial differences between copyright and other intellectual property rights, for the latter of which certain formalities provided for in relevant laws are needed. Unfortunately not all people are aware of this important difference and it has been causing a lot of confusion.
    The above-mentioned rule means that the actual creator (author) of a work owns copyright, and therefore, such entities as the producer who entrusted the creation or the sponsor who financially supported the creation do not own any copyright.
    Even if company A entrusts the creation of a work to company B, paying all the necessary money, this does not mean that company A will own the work's copyright. Also, attention should be paid to a legal rule provided for in Article15 (Authorship of a work made by an employee in the course of his duties) of the Japanese Copyright Law. In the above case, when company B makes "employee b" create the entrusted work, company B will become the author of the work, who will own the work's copyright, rather than employee b, who is the actual creator of the work.
    If company A would like to own the work's copyright, it should include an article in the contract to entrust the creation of the work which stipulates that the work's copyright shall be transferred from company B to company A.
    Also, it is crucial to know that, among the two categories of rights included in copyright in a broad sense, what is transferable is only the part of "economic rights" (the rights provided for in Article 21-28 of the Japanese Copyright Law), and "moral rights" (the rights provided for in Article 18-20 of the Japanese Copyright Law) , which are of inalienable nature (Article 59 (Inalienability of moral rights of authors) of the Japanese Copyright Law) cannot be transferred to anyone from the author.
    However, when the economic rights are transferred by a contract the disclosure of the work covered by the right of "making the work public" (Article 18 of the Japanese Copyright Law) is presumed to be authorized by the author (item(i), paragraph (2), Article 18 of the Japanese Copyright Law), which means that company B cannot exercise this moral right after the transfer of the economic right. On the other hand, company B can still exercise moral rights of "determining the indication of the author's name" (Article 19 of the Japanese Copyright Law) and preserving the integrity" (Article 20 of the Japanese Copyright Law) even after the transfer of the work's economic rights.
    If company A insists on the ownership of moral rights, the only possible way to realize such a legal situation would be to tentatively second employee b from company B to company A, making him an employee of company A for the period of the creation of the work. In this case, above-mentioned Article 15 of the Japanese Copyright Law (Authorship of a work made by an employee in the course of his duties) will apply, and company A, which is the employer of employee b, can obtain the authorship of the work together with the ownership of all economic rights.


    Q3. Who is the author of the work which was created by the cooperation of some people?

    Answer

    There are two types of works which are created by two or more people. The first type is the case in which the work apparently looks like one work but is actually composed of some independent works. Some examples of this type are a piece of music the melody and the lyrics of which were created by different people and a book the novel and the illustrations in which were created by different people. They are often called "combined works". In the case of such a work, all the components are independent works, and therefore, the rules of the authorship and exploitation are the same as the case of other works. Copyright in terms of each component is held by its author, and therefore, those who would like to make use of just one component should obtain the authorization of the author of that component alone. Also, when the term of protection of one component has expired, the exploitation of that component does not call for authorization any more.
    The second type is called a "joint work" (item (xii), paragraph (1), Article 2 of the Japanese Copyright Law), which is created through the cooperation of two or more people, and the contribution of each person in which cannot be exploited separately. A number of large digital contents seem to belong to this type. As a joint work is a single work, its copyright is held collectively by all the people who contributed to the creation. Therefore, those who would like to exploit a joint work should obtain the authorization of all such people. However, with a view to ensuring the smooth circulation of joint works the Copyright Law provides for in its paragraph (3), Article 65 that each co-owner of the copyright of a joint work may not, without reasonable justification, refuse the consent or prevent agreement. The term of protection of a joint work is the same as ordinary works, i.e. 50 years after the death of the author, however, it should be calculated from the death of the last surviving co-author (paragraph (2), Article 51 of the Japanese Copyright Law).


    Q4. Who is the author of the work which was created by an employee of a company as his duty?

    Answer

    This question is on, when an employee (e.g. an engineer) of a company creates a work, who will be the author to be granted copyright, the employee or the company.
    As the author should be the creator of a work in principle, the employee should have the status of the author. However, taking into account the fact that the employee created the work as his duty, being paid by the company, it should also be possible to adopt another legal system in which, in such a case as the above, the company has the authorship of the work.
    This way, there are two possible systems, and the Japanese Copyright Law grants the status of author to the employer under some conditions, considering that, as such a work as the above is usually exploited by the employer, if the employee is granted copyright, the legal relation between the employer and the employee will be complicated, and also, the use of the work may be hampered.
    The conditions listed in the Copyright Law, by which the employer becomes the author, are the following (paragraph (1), Article 15 of the Copyright Law).
    (1) The work is created within the framework of the employer's business.
    (2) The work is created by an employee as his duty.
    (3) The work has been or would be open to the public under the name of the employer.
    (4) There is no specific stipulation in the contract of employment.
    The author of any work fulfilling all of the above conditions is the employer, and therefore, the employer is granted not only all the economic rights but also the moral rights.
    However, in the case of computer programs, some programs are kept within the company as its business secrets and/or used only in the company without being disclosed to the public. Such a computer program usually has no indication of the name of the company, which means that it does not fulfill the above third condition. Therefore, the Copyright Law was amended in 1985 so that, in terms only of computer programs, the employer is granted the status of author without fulfilling the above third condition. After this amendment, the company keeps the authorship as well as the ownership of the economic rights without any indication of its name on the computer program.
    However, the above new system was made mainly for computer programs which will not be open to the public, and therefore, in the case of computer programs for sale (e.g. those stored in CD-ROMs for sale) it would be better to indicate the name of the author (maker) to avoid any misunderstanding and/or confusion.


    Q5. Is it permissible to make a copy of a digital content for personal use?

    Answer

    The reproduction of a work to use the copy personally just for fun or learning within a household or among a small number of friends (not for business purposes), e.g. recording music at home and copying a thesis for personal learning, does not need the authorization of the author (paragraph (1), Article 30 of the Copyright Law). The former Copyright Law of Japan established in 1899 also had a similar provision, however, the relevant article also said, "excluding the case to use mechanical or chemical methods," restricting the way of reproduction. Therefore, reproduction for personal use by handwriting was permissible but recording machines or copying machines should not be used in order to be covered by this limitation provision.
    However, the new limitation provision was provided for far before the advent and diffusion of digital technologies. In the case of analogue reproduction, the quality of copies is much worse than that of the original, and therefore, the above exception did not seriously damage the legitimate interests of right owners. On the other hand, in the case of digital reproduction of digital contents, a number of clone copies of the same quality as the original can be made quite easily, which could hardly be acceptable to right owners.
    Therefore, the Copyright Law has been amended several times to make restrictions to the above limitation provision (excluding other limitation provisions) as follows:
    Firstly, reproduction for personal use by making use of a copying machine for the use of the public (e.g. a high-speed dubbing machine set up in a CD rental shop) was excluded from the scope of this limitation provision ((i) paragraph (1), Article 30 of the Copyright Law). However, reproduction by making use of a copying machine for the public use "solely for writings and printings" remains permissible "for the time being" by a special provision Article 5bis of the Supplementary Provisions). A typical example of such a case is the copying of a newspaper, making use of a copying machine in a convenience store.
    Secondly, knowing reproduction for personal use of a work the electro-magnetic copy guard means has been deleted or modified without authorization was excluded from the scope of this limitation provision ((ii) paragraph (1), Article 30 of the Copyright Law).
    Thirdly, knowing downloading for personal use of a work (moving image and recorded sound only) which has been interactively transmitted without authorization was excluded from the scope of this limitation provision ((i) paragraph (1), Article 30 of the Copyright Law). This amendment was made in 2009 to cope with the advent of a new situation that, by the rapid expansion of the use of the Internet, a number of moving images and sound recordings were illegally transmitted to mobile phones and other devices in interactive ways and the prevailing act of downloading such contents was damaging the normal market and the interests of right owners. Also, by the amendment in 2012, violation of this rule was covered by penal sanctions. Please see Q 13.
    Fourthly, unauthorized recording of a movie within a movie theater was excluded from this limitation provision (Article 4 of the Movie Sneak Recording Prevention Act). The purpose of this law was to prevent any excuse, by making use of the limitation provision, for unauthorized recording of a movie within a movie theatre which was actually for commercial purposes.
    Also, in the amendment in 1992, the private recording compensation system was established within the Japanese Copyright Law (paragraph (2), Article 30), and the payment of the compensation added to the prices of digital audio recording machines (those for DAT, DCC, MD, CD-R and CD-RW), digital visual recording machines (those for DVCR, D-VHS, MVDISC, DVD-RW and DVD-RAM) and relevant digital audio and visual recording media was started, so that the interests of right owners may not be unreasonably prejudiced. For the details of this compensation system, please see "Case Study Vol.2: Private Audio/Audiovisual Recording and Copyright".


    Q6. Is it permissible to make a backup copy of a computer program?

    Answer

    Although it hardly takes place these days, there used to be a number of cases that computer programs were fragile and easily damaged by malfunction of computers and/or sudden shutoffs of electricity. To cope with such cases, it became a normal practice among computer users to make backup copies of the computer programs, the act of which was covered by copyright (the right of reproduction), and therefore, called for the authorization of the author in principle.
    If the backup copy is to be used only for personal purposes (excluding business purposes) this act of reproduction was permissible by the exception explained in Q5. However, as reproduction for business purposes, e.g. the case that an employee of a profit-making company or a national/local government makes a backup copy, was not covered by the above exception, another special exception just for backup copies of computer programs became needed so that it could be done without authorization by the right owner.
    Therefore, a new article was established in the Copyright Law of Japan (Article 47ter), which provides for in its paragraph (1) as follows:
    The owner of a copy of a program work may make copies or adaptations (including the making copies of a derivative work created by means of adaptation) of that work if and to the extent deemed necessary for the purpose of exploiting that work on a computer by himself, provided that the provision of Article 113, paragraph (2) does not apply to the use made of such copies in connection with such exploitation.
    Actually, in many cases, the act of reproduction to make a backup copy is authorized by the right owner by an indication in the manual or other documents attached to the computer program at its sale, however, even if such an indication does not exist, a backup copy can be made without authorization based on the above-mentioned exception.
    Attention should be paid, however, to the fact that only one copy can be made without authorization as a backup copy, and therefore, making a number of (backup) copies and distributing them to a lot of employees within a company are not permissible within the framework of this exception. Paragraph (2) of the above-mentioned article also provides for as follows.
    If the owner of copies mentioned in the preceding paragraph has ceased to have the ownership of any of copies mentioned in that paragraph (including copies made in accordance with the provision of that paragraph) for reasons other than those of destruction, he may not thereafter preserve other copies in the absence of any declaration of the intention of the copyright owner to the contrary.



    Q7. Is it permissible for a public library to make a copy of a library material such as a CD-ROM for library users?

    Answer

    Libraries are collecting an increasing number of CDs, CD-ROMs and other digital contents as their library materials in addition to such traditional ones as books, periodicals, newspapers, phonograms and so on.
    The Copyright Law of Japan provides for an exception for reproduction by the library with a view to responding to the needs of library users to receive copies of library materials as follows.

    [Paragraph (1), 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 of 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 or 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 point or for other similar reasons.

    In the above provision, "libraries and other establishments, designated by Cabinet Order, having the purpose, among others, to offer library materials for the use of the public" are the National Parliamentary Library, public libraries established by prefectures, public libraries established by municipalities, university/college libraries and technology college libraries, as well as libraries within national museums and such other organizations as the Federation of Economic Organizations. However, libraries in private profit-making firms are not included.
    Also, as to above (i), not only a part but also all of an individual work incorporated in a periodical can be copied by the library without authorization of the author after a considerable period of time following the publication.
    Digital library materials incorporated in CDs, CD-ROMs and other digital media as well as all other digital library materials can also be copied by the library, making use of the above exception. However, this exception was established before the advent and diffusion of the works of digital format without expecting that library would collect a number of digital contents, and also, there may be a movement in the future to amend this exception. Therefore, it seems better for libraries to refrain from widely making use of this exception for digital library materials.
    Another on-going controversy is on the facsimile and e-mail transmission services of the copies made by the above-mentioned exception. As the act of transmission to the public by any means including facsimile and e-mail is covered by another independent right of public transmission (paragraph (1), Article 23 of the Copyright Law), the copy made by the library, making use of the above exception, should not be transmitted to library users (the public) without authorization of the right owner. On the other hand, from the viewpoint of library users, it looks strange that, while the copy can be directly handed or mailed, it should not be electronically transmitted. The Copyright Sub-Council of the Culture Council of the government is continuing the discussion on possible amendments of the Copyright Law to cope with this issue.


    Q8. Is it permissible for a public library to digitize preexisting library materials?

    Answer

    The Copyright Law of Japan provides for that it is permissible for public libraries to reproduce their library materials "where the reproduction is necessary for the purpose of preserving library materials" (item (i), paragraph (1), Article 31 of the Copyright Law). As this limitation provision does not exclude digital format, it is also permissible to digitize pre-existing library materials if it is done "where the reproduction is necessary for the purpose of preserving library materials". However, this condition of "necessary for the purpose of preserving library materials" is usually interpreted narrowly, and the ordinary interpretation is that, when a library reproduces its materials, for example, in microfiches or microfilm to cope with the problem of preserving space, the original materials should be destroyed.
    Therefore, based on this interpretation, when a library digitizes its materials for the reason of "the reproduction is necessary for preserving library materials", the originals should be destroyed or, if not, the authorization of the right owners should be obtained.
    Also, when a library digitizes its material not by reproducing it as a whole as an visual image as a whole by a scanner of a computer but by changing each letter into digital signals, attention should be paid to the possibility to infringe the moral right of integrity (paragraph (1), Article 20 of the Copyright Law) as it might be impossible to perfectly digitize the original text because of any technical problem.
    Although the moral right of integrity does not apply to "modifications which are deemed unavoidable in the light of the nature of a work as well as the purpose and the manner of exploiting it" (paragraph (2), Article 20 of the Copyright Law) and there could be an interpretation that this right does not apply to the case of impossibility to perfectly digitize the original text, there should be a proof that the case really corresponds to the impossibility by technical reasons.
    Some authors insist on the use of specific (old-fashioned) letters, e.g. old Chinese characters which cannot be digitized by a device of Level 1 or Level 2 of the Japan Industrial Standard, or on a specific page structure, e.g. intentionally scattering a limited number of Chinese characters in a balanced way on every two (left and right) pages to be seen at the same time. It would, therefore, be better to pay due attention.
    Also, digital transmission of library materials is a totally different issue from their digital reproduction. The exchange of materials among libraries by digital transmission would be good to a lot of libraries to cope with financial and space problems, as well as to the library users, and therefore, the further development of such systems is expected.
    However, from the viewpoint of copyright protection, some of such cases call for the authorization of the right owners. Firstly, a library can provide other libraries with copies of its materials without authorization only "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 point or for other similar reasons" (paragraph (1), Article 31 of the Copyright Law). Therefore, the authorization of the right owner should be obtained in the case where the material is available through normal trade channels. Secondly, the act of transmission of library materials to the public is covered by the right of public transmission of the right owner, and therefore, the authorization is always needed because Article 31 of the Copyright Law provides for an exception only to the right of reproduction.
    In addition, by the amendment of the Copyright Law in 2009 a new limitation provision (paragraph (2), Article 31 of the Copyright Law) was made, which allows the National Parliamentary Library alone to make digital copies of its materials without authorization of the right owners immediately after the legal deposit.


    Q9. Is it permissible for an educational organization such as a school to digitize preexisting works for teaching materials and use computer programs without authorization?

    Answer

    The digitization of a preexisting work corresponds to reproduction, and this act calls for the authorization of the right owner in principle. However, Article 35 of the Copyright Law of Japan provides for in its paragraph (1) an exception as follows, and therefore, the reproduction of a preexisting work by digital format is also permissible if all the conditions below are fulfilled.
    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.
    Attention should be paid, however, to the fact that this article provides for a general condition: "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," which means that when the number of the copies is considerably or unnecessarily large, the authorization of the right owner is needed. If the number of students or pupils is 40-50, and the digitization takes place in the computers of a similar number, the interests of the copyright owner do not seem to be unreasonably prejudiced, and therefore, such digitization seems to be covered by the above exception.
    It should be noted that this exception does not apply to the case in which the digitization is done by anyone other than "a person who is in charge of teaching and those who are taught". Also, digitization carried out in a profit-making educational institution (for example a private cramming or preparatory school and a culture school) is not covered by the above exception and calls for the authorization of the right owner.
    In many cases a contract is made between the school and the maker of computer programs in terms of such conditions of the use as the number of computers and the period of use, and the install (reproduction within computers) of the computer program should be done within the framework of the contract.
    Also, when a number of computers within a classroom is connected by a network and one computer program is used by everybody by transmitting it each other, this act corresponds to public transmission covered by copyright (Article 23 of the Copyright Law of Japan), and therefore, the authorization of the right owner is needed.
    As explained above, not all cases of digitization and reproduction at school are covered by limitations and exceptions of copyright even if they are done for educational purposes. Therefore, those engaged in education should be more aware of copyright and make sure that digitization and reproduction are done under the condition that "such reproduction does not unreasonably prejudice the interests of the copyright owner".
    For further details, please see "Case Study Vol.1: Copyright and School Education".


    Q10. Is a web page or a blog protected by copyright?

    Answer

    An increasing number of firms and people are having their own web pages and blogs, after the advent of the digital and Internet age, to transmit information through the digital networks.
    Such a web page is often called "homepage" (to mean all pages and files of the web page) in Japan, which originally means the first page displayed after accessing a URL starting with "www" just like the cover page of a book.
    A blog means a web site in which someone's diary and/or comments are displayed, which can be made much easier than a web page. Both of "web page" and "blog" are a kind of "web site".
    The nature of a web page or a blog varies from those only with text files to extremely complicated ones with a number of pictures, moving images, sounds and so on. The majority of web pages seem to correspond to "works" (independent works or compilations) under the Copyright Law of Japan. Although paragraph (1), Article 10 of the Copyright Law, which provides for the examples of the categories of works, does not mention web page or blog, it is just because such a digital work did not exist and was not expected when the Copyright Law was established. Paragraph (1), Article 2 of the Copyright Law provides for the definition of "work" as "a production in which thoughts or sentiments are expressed in a creative way and which falls within the literary, scientific, artistic or musical domain," and therefore, a web page which corresponds to this definition is a copyrighted work of authorship.
    After the advent of computer programs, a number of cases of unauthorized reproduction were reported and the Court said that, although computer program was not listed in Article 10 of the Copyright Law it was protected by the Copyright Law as a type of copyrighted work. This pushed the movement toward the amendment of the Copyright Law in 1985 to establish a number of provisions for computer programs.
    Just like computer programs in the past, "web page" and "blog" are not explicitly mentioned in the Copyright Law, however, it should be covered by the Law either as an independent work or as a compilation. Therefore, downloading the contents in a web site without authorization (or an exception provision in the Copyright Law) would constitute infringement of copyright viz. the right of reproduction and/or public transmission.
    A complicated web page is often created by a specialized company by an order from a client, and in such a case, the owner of economic rights should be clearly stipulated in the contract from the beginning. Also, if the web page is a compilation of preexisting works, attention should be paid, in the process of creation, to the economic and moral rights of the authors of such preexisting works to be incorporated.


    Q11. How can a preexisting work be used in a web page or a blog?

    Answer

    Preexisting works (for example, such as texts, pictures, photos, etc.) are quite often incorporated into web pages and blogs, and it means that the act of reproduction takes place by storing such works within the memory of the server. This act, of course, calls for the authorization of the author. Article 30 of the Copyright Law provides for an exception for reproduction for private use, and the reproduction of a preexisting work in a personal web page (not a web page of a company for profit-making purposes) may seem to be covered by this exception. However, storing a work in the server to make a web page is to reproduce the work not for personal use but for transmission to the public, and therefore, the above article does not apply to such a case. Also, as the web page or the blog is transmitted to the public, the person who makes a web page or blog, making use of preexisting works should obtain the authorization of the relevant authors not only for reproduction but also for public transmission.
    The above is the general principle, however, there are some points which need further clarifications in terms of other exception provisions.

    (a) Reproduction of National/Local Authorities' Reports
    Paragraph (2), Article 32 of the Copyright Law provides for, "It shall be permissible for the press or other periodicals to reproduce informatory, investigatory or statistical data, report and other works of similar character which have been prepared by organs of the State or local public entities or independent administrative organs for the purpose of public information and which have been made public under their authorship, provided that the reproduction thereof is not expressly prohibited." Therefore, preexisting works can be reproduced without authorization "for the press or other periodicals". However, a web page or a blog does not seem to correspond to "the press or other periodicals", and therefore, authorization seems to be necessary to reproduce such a work in a web page, according to the provision of the Law.
    There could be an opinion that, as documents and materials prepared and issued by the State or local public entities or independent administrative organs are made for the purpose of public interests, such organs or entities will not complain of such a use. However, if someone takes this opinion he/she should make use of the work at his/her own risk.

    (b) Quotations
    The act of reproduction and other uses as a quotation are permissible under the condition that the use is "compatible with fair practice and their extent does not exceed that justified by purposes such as news reporting, criticism or research" (paragraph (1), Article 32 of the Copyright Law). However, such questions as the meaning of "fair practice" and the range of "extent .... justified" are all case law issues. Therefore, the user who would like to make use of this exception should make efforts by e.g. (1) making a blank line between the quoted part and other parts, and (2) make a clear distinction between the major part (written by the author of the web page) and the subordinate part (quoted part). Also, attention should be paid to the obligation to indicate the source (paragraph (1), Article 48 of the Copyright Law).


    Q12. Does the act of "linking" without approval constitute infringement?

    Answer

    Linking is a mechanism by which the person looking at a web page on his/her personal computer's display can automatically access the URL in the web page directly just by clicking the URL on the display.
    Some people worry about the relation between linking and copyright. However, the act of linking, viz. showing in one's web page a URL of another web page does not constitute any infringement of copyright, because the person who clicks the linked URL on the display directly accesses that web page and no reproduction or transmission takes place in the server of the linking web page.
    Sometimes there is an indication in a web page which says, "Please contact and obtain authorization for linking" or "Approval needed for linking", however, such an indication has no legal meaning or effect. When a URL of a web page is open to the public any one can reproduce it in a book or in a web page (either by linking or just copying it). Also, if the author of a web page would like to let only specific people access it, he/she can easily make use of a password system to avoid public access.
    However, if the system of linking is accompanied by the act of reproduction within another server, the authorization should be obtained. In such a case, if any, attention should be paid also to the right of integrity.


    Q13. Is there any copyright problem in using file exchange software and video hosting service?

    Answer

    File exchange software is a kind of computer program by which, making use of P2P (Peer to Peer) technologies, makes it possible for a lot of non-specific users to transmit such contents as music and audiovisual works each other through the Internet. It is also called file-sharing software and some examples are Napster (1999-) and Gnutella (2000-) and also, as Japanese ones, Winny (2002-) and Share (2003-).
    A video hosting service is a system by which a lot of non-specific users can access and perceive audiovisual contents which have been transmitted by non-specific users and stored in an Internet server. YouTube is a kind of video hosting service which is well-known through the world.
    It is argued that illegal uses of such preexisting contents as TV programs, movies and music, making use of file exchange software, as well as illegal uploads of these works, making use of video hosting services, are increasing along with the rapid development of digitization and broadband networking. The scale of the market of such illegal use is said to exceed that of lawful business of contents transmission and delivery.
    The following are some points to which attention should be paid in terms of the use (by uploading and downloading contents) of file exchange software and video hosting services.

    [1] Uploading
    The act of uploading a preexisting work in a server connected to the Internet for direct reception by the public without authorization of the copyright owner constitutes infringement of the right of reproduction (Article 21 of the Copyright Law) and the right of public transmission (paragraph (1), Article 23 of the Copyright Law), the latter of which also covers the act of transmitting the work from the server (download by a member of the public) upon access.
    It is however extremely difficult to chase and identify all the acts of uploading and public transmission in the present highly networked society, in which a tremendous amount of illegal transmissions can be done secretly by personal computers owned by everybody. Therefore, legislation to cope with illegal transmitters is not sufficient and a new legislation targeting receivers has been made as will be delineated in [2] below.
    Also, there have been some court judgments which said that it consisted copyright infringement to provide file exchange software or a video hosting service and, at the same time, to provide a service by a special server to let users access information on accessible files (for example the services provided by Napster) if not carrying out the act of transmission in person.

    [2] Downloading
    The act of downloading such works as music and film (excluding other categories of works) corresponds to reproduction covered by the right of reproduction (Article 21 of the Copyright Law). By the limitation provision of paragraph (1) Article 30 of the Copyright Law, "reproduction (including downloading) for private use" just for fun or learning without authorization does not constitute any infringement of copyright in general. However, by the amendment of the Copyright Law in 2009, it became illegal to knowingly and digitally download illegally uploaded audio or movie files for personal use (excluding other limitation provisions)(item (iii), paragraph (1), Article 30 the Copyright Law). By this amendment it became possible for the right owners whose reproduction right was infringed by the above illegal downloading to make use of civil remedy systems, however, because of the lack of the possibility to use penal remedy systems the effect of this amendment was limited. Therefore, coping with a series of strong lobbying by the right owners organizations, the Copyright Law was amended again in 2012 to cover the infringement of downloading by penal sanctions: up to two years of imprisonment and/or fine up to two million yen (paragraph (3), Article 119 the Copyright Law of the Copyright Law).


    Q14. How was the Japanese Copyright Law amended to prevent illegal business of pirated copies through Internet auctions and Internet sales?

    Answer

    Sales of goods over the Internet (for example, Internet auctions and Internet sales) have been rapidly growing along with the recent remarkable development of digitization and networking, and the scale of the market is said to be almost exceeding the conventional business. However, it is also argued that, as such sales are of highly anonymous nature, a lot of pirated copies are sold by these systems.
    The Copyright Law of Japan has a provision on "acts considered to be infringements" (Article 113 of the Copyright Law) by which "the distribution and the possession for distribution of objects made by an act infringing copyright by a person who is aware of such infringements" are deemed as infringement. The act of "possession for distribution" was recently added to "distribution" because it was not easy to identify the real act of distribution.
    However, after the advent of various types of businesses over the Internet, it also became difficult to identify the possession and such remedial measures within the framework of traditional legal systems as cessation (Article 112 of the Copyright Law) could not fully function any more.
    To cope with such a new situation, the Copyright Law of Japan was amended in 2009 and the act of "offering distribution" became newly included in the scope of the acts considered to be infringements (item (ii), paragraph (1), Article 113 of the Copyright Law). This concept of offer of distribution covers not only the display in an Internet site for auction or sale but also tangible distribution of catalogues and other materials.
    The above amendment of the Copyright Law means that those who are providing an Internet auction site may be liable as the transmission of the offer itself now constitutes infringement.
    In addition, with the view to annihilate illegal distribution of copyrighted works it seems crucial to further develop legal actions as the above against infringers as well as to promote public awareness among the general public who have been purchasing pirated copies.


    Q15. Is the copyright of a freeware waived?

    Answer

    The computer programs which can be downloaded freely through the Internet can be roughly classified into two categories: freeware (free of charge) and shareware (charged).
    In terms of the former, there could be a controversy on whether the copyright has been waived or not. Supplying a work freely means that the author will not complain of any reproduction or other uses of it by any user, and this situation may look like the waiver of copyright.
    However, this understanding is totally wrong. The author of such a computer program may intend to widely diffuse it but at the same time to start to charge fees after its version-up in the future. Also, the computer program after a version-up corresponds to a "derivative work" under the Copyright Law, and its author is the person who actually carried out the version-up (the creation of a derivative work). Therefore, if the copyright of the first version (the original work, the author of which is granted the right to control the use of all the derivative works) is waived, the derivative work made by someone else will not be covered by the copyright of the author of the original.
    The author of the original does not seem to intend such a situation, and therefore, the case of freeware should be interpreted as the author keeps his copyright but just refrains from exercising it.


    Q16. How was the Japanese Copyright Law amended to expand the scope of limitation related to various services over the Internet?

    Answer

    A number of musical and visual works are transmitted through the Internet in digital formats. However, on the other hand, it was argued that the provisions of limitations and exceptions in the Copyright Law to permit unauthorized uses of works were not enough and it caused insufficient distribution of digital contents, compared to other countries. Therefore, in the amendment of the Copyright Law in 2009 and 2012, some new limitation provisions were added to facilitate the use of works over the Internet.

    • Exploitation for search engines
      It was argued that the acts of data collection, arrangement, analysis, display, etc. carried out in the information search service might be constitute infringement of copyright, and at the same time, that obtaining the authorization for all the relevant works would be impossible.
      By the above amendment in 2009, it is newly covered by the limitation of the Copyright Law, under certain conditions and to the extent necessary, for the information search service providers to reproduce and transmit to the public the works which have already been uploaded (Article 47sexies. of the Copyright Law). The above conditions include such service providers' acts as shutting off the display when an illegally uploaded work is found, and refraining from collecting information when the right owner prohibits data collection.

    • Display for the sale over the Internet
      It has been argued that the display of reduced images of such goods as drawings and pictures for the Internet auction or sale might constitute infringement of the right of reproduction (Article 21 of the Copyright Law) and/or the right of public transmission (Article 23 of the Copyright Law).
      By the above amendment, it has become permissible to reproduce and transmit such images without authorization of the right owner, under some conditions in terms of the size and quality of the images to be transmitted (Article 47bis. of the Copyright Law).

    • Reproduction to facilitate transmission
      By the above amendment in 2009, some new limitation provisions were established in terms of reproduction of works in order to realize more efficient and stable transmission, coping with the rapid development of broadband transmission over the Internet.
      (1) Mirroring reproduction in another server in order to avoid any delay of transmission caused by excessive accesses.
      (2) Backup reproduction to cope with any possible malfunction of a server.
      (3) Caching reproduction in servers to disperse the lord of the network with a view to increase the data processing speed.

    • Reproduction for data analysis in a computer
      It is now needed to select and analyze just necessary pieces information among the flood of information provided over the Internet. In such a situation it was argued that copyright should be further limited to facilitate such selections and analyses.
      The act of storing all information in a computer before selecting necessary information in the process of information analysis did no seem to infringe copyright, however, as there was no directly relevant limitation provision in the Copyright Law, some argued that the authorization of the right owners was needed.
      The amendment in 2009 introduced a new limitation provision to make such an act permissible (Article 47septies. of the Copyright Law).

    • Reproduction needed to use a computer
      Computers are now increasingly used in many occasions such as viewing texts and moving images, and listening to music. In such use of computers the works are temporarily reproduced in data processing within the computer, which might correspond to the act of reproduction.
      The above amendment of the Copyright Law in 2009 introduced a new limitation provision that such temporary and transient reproduction taking place in data processing in a computer is permissible without authorization of the copyright owner to the extent deemed necessary for smooth and efficient processing (Article 47octies. of the Copyright Law).

    • Reproduction/Adaptation needed for the preparation of interactive transmission
      In the Websites which transmit moving images provided by the Website users it is usually needed to carry out reproduction and/or adaptation of the provided contents because they are transmitted to the Website by various formats, which should be unified before the public transmission form the Website. In such cases in which certain processing by a computer is needed for smooth and effective pubic transmission afterword, it is permissible to reproduce the provided work within a computer and to adapt it up to the extent needed (Article 47novies. of the Copyright Law). This amendment was made in 2012.



    Q17. Should the maker of translation software take the liability of unauthorized translation done by its user?

    Answer

    As computer programs for language translation develop, an increasing number of people are now downloading them and translating information and materials in overseas web pages, making use of them. The act of translation of a preexisting work is covered by copyright (Article 27 of the Copyright Law), and therefore, the translator should obtain the authorization of the author beforehand except for the cases covered by the exception provisions in the Copyright Law. If a work is translated without authorization and exception provision, the author may claim civil and/or criminal remedies just like other cases of copyright infringement.
    The above question is on whether the maker of the translation program has any contributory liability for the infringement committed by a user in addition to the user himself. In general, the maker seems to have no liability, because the user of the translation program does not necessarily use it to infringe copyright. The program can be used for the translation of a work the term of protection of which has already expired, a work which is not protected by copyright, a work for private use, a work with authorization, and so on, no case of which is infringement.
    Therefore, as long as the user of the program makes use of it for such lawful ways, there will not be any liability of anyone. Also, even if the user infringes copyright, the maker who does not know it nor expect it will have no liability. This is the same case as a shop owner who sold a knife would not take any contributory liability for the murder committed by the user.
    However, if the maker knows that the user is willing to make use of it for infringement, there could be a possibility that contributory liability is claimed.


    Q18. Running a publishing company for a long time, I am about to expand my business to electronic publishing. What should I be careful for in terms of copyright?

    Answer

    If you have the exclusive right of interactive transmission to the public of the work, you can do its electronic publishing, which would be the most favorable way for the publisher. The exclusive economic rights included in copyright includes that for interactive transmission, and therefore, if the whole exclusives economic rights have been transferred from the author to you or if the exclusive right of interactive transmission alone has been transferred to you, you can do its electronic publishing without authorization of anyone including the author. However, the author usually would not like to transfer his copyright to anyone, losing his important intellectual property rights, it is rare the case that a publisher can make a contract of copyright transfer.
    The second best way for a publisher is to make a contract with the author about the establishment of “publishing right” for electric publishing. This way, you may have an exclusive right to cope with other publishers as well as the author, who may give double permission. This contract to transfer a part of the author’s exclusive right to a publisher used to be limited to the right of reproduction and distribution, namely, publishing by paper. However, as an increasing number of publishers would like to have a similar status also for electronic publishing, coping with the advent or the age of electronic books, the Copyright Law was amended in 2014 so that such a contract may be made also for electronic publishing (Paragraph 1, Article 79). Therefore, for exclusive publishing of any work, it is possible and necessary now to have a contract of the establishment of electronic publishing right with the right owner. The contracts to establish publishing rights in the past had been limited to paper publishing, and therefore, such contracts are not expanded to electronic publishing automatically, and a new contract for electronic publishing should be made. For a new such contract the relevant parties should choose among possible contracts: (a) only for paper publication, (b) only for electronic publication and (c) for both of them (Paragraph 1, Article 80). Even if you do not have any plan of electronic publishing now, it might be better for future possibilities to choose above (c). The acquisition of the publishing right (the transfer of a part of the relevant exclusive right from the author) grants a status to you to exclusively exploit the work, and also to authorize, under the approval of the original right owner, other parties’ acts of reproduction and/or public transmission (Paragraph 3, Article 80 of the Copyright Law). Such other rules for the electronic publishing right are the same as the case of analogue (paper) publishing right as the publishing right exhausts in three years if not stipulated otherwise in the contract (Paragraph 2, Article 83 of the Copyright Law); and the owner of the electronic publishing right should start the electronic transmission to the public through the Internet within six months after the submission of the manuscript (Article 81 of the Copyright Law). It is usually easier to make a contract with the author to establish (tentatively transfer) the right of electronic publishing, compared to that to transfer all rights or public transmission right for good, because in the case of the former the author may recover the relevant exclusive rights in three years.
    The third way for electronic publishing is to have a license from the author. This only means that the publisher is authorized (permitted) by the right owner to transmit the work to the public, without granting (transferring) any exclusive right to the publisher. Therefore, the publisher cannot prohibit electronic publishing of the same work by another publisher who also has a license to do so.

    To Page of Top