Chapter V Compensation for Private Sound and Visual Recording
(Exercise of the Right to Receive Compensation for Private Sound and Visual Recording)
Article 104-2 (1) If an association is in existence that has as its purpose the exercise of rights on behalf of persons that own the right to receive the compensation referred to in Article 30, paragraph (2) (including as applied mutatis mutandis pursuant to the provisions of Article 102, paragraph (1); the same applies hereinafter in this Chapter) (hereinafter in this Chapter referred to as "compensation for private sound and visual recording") (hereinafter in this Chapter such persons are referred to as "right holders"), whose consent has been obtained and which the Commissioner of the Agency for Cultural Affairs has designated as the only association in the country for the relevant category of compensation for private sound and visual recording among those set forth in the following (hereinafter in this Chapter referred to as a "designated association"), the right to receive compensation for private sound and visual recording may be exercised exclusively through the relevant designated association:
(i) compensation for private sound and visual recording in connection with sound recorded for the purpose of private use (unless the recorded sound is exclusively for use with recorded visuals; hereinafter in this Chapter referred to as "private sound recording");
(ii) compensation for private sound and visual recording in connection with visuals recorded for the purpose of private use (including visuals recorded along with recorded sounds used exclusively therewith; hereinafter in this Chapter referred to as "private visual recording").
(2) A designated association has the authority to act in and out of court on behalf of a right holder, in its own name, in connection with the right to receive compensation for private sound and visual recording.
(Designation Criteria)
Article 104-3 The Commissioner of the Agency for Cultural Affairs may not make a designation under the provisions of paragraph (1) of the preceding Article unless the association satisfies the following criteria:
(i) it is a general incorporated association;
(ii) in a case involving the compensation for private sound and visual recording set forth in paragraph (1), item (i) of the preceding Article, it has as its members the associations set forth in (a), (c), and (d), or, in a case involving the compensation for private sound and visual recording set forth in item (ii) of that paragraph, it has as its members the associations set forth in (b), (c), and (d):
(a) an association (including a federation of associations) that has as its members persons that own the rights provided for in Article 21 in connection with works associated with private sound recording, and which is recognized as representing, in Japan, the interests of persons that own the right provided for in that Article in connection with works associated with private sound recording;
(b) an association (including a federation of associations) that has as its members persons that own the right provided for in Article 21 in connection with works associated with private visual recording, and which is recognized as representing, in Japan, the interests of persons that own the right provided for in that Article in connection with works associated with private visual recording;
(c) an association (including a federation of associations) that has as its members a considerable number of persons that perform professionally in Japan;
(d) an association (including a federation of associations) that has as its members a considerable number of persons that produce phonograms professionally in Japan;
(iii) the associations set forth in (a) to (d) of the preceding item satisfy the following conditions:
(a) they are not-for-profit;
(b) their members may freely join and leave;
(c) their members have an equal right to vote on resolutions and in elections;
(iv) they have sufficient capacity to personally and properly perform functions involved in exercising the right to receive compensation for private sound and visual recording (including functions involved in the undertaking referred to in Article 104-8, paragraph (1); hereinafter in this Chapter referred to as "functions connected with compensation") on behalf of the right holders.
(Special Provisions on the Payment of Compensation for Private Sound and Visual Recording)
Article 104-4 (1) A person that purchases a machine or recording medium specified by Cabinet Order which is as referred to in Article 30, paragraph (2) (herein-after in this Chapter referred to as a "specified machine" and a "specified recording medium", respectively) (limited to persons that make the initial purchase of a specified machine or specified recording medium after it is retailed), if so requested by the designated association, must pay compensation for private sound and visual recording at the time of the purchase, in an amount established for the relevant specified machine or specified recording medium pursuant to the provisions of Article 104-6, paragraph (1), as a lump-sum payment representing compensation for private sound and visual recording, for the private sound recording or private visual recording that will be done using that specified machine or specified recording medium.
(2) A person that pays compensation for private sound and visual recording pursuant to the preceding paragraph may claim a refund of that compensation for private sound and visual recording from the designated association, by proving that the person uses the specified machine or specified recording medium for which the person has paid that compensation exclusively for purposes other than private sound recording and private visual recording.
(3) Notwithstanding the provisions of Article 30, paragraph (2), a person that uses a specified machine for which compensation for private sound and visual recording has been paid as per a request for payment under the provisions of paragraph (1) of this Article to do private sound recording or private visual recording on a specified recording medium for which compensation for private sound and visual recording has been paid as per a request for payment under that paragraph is not required to pay compensation for private sound and visual recording at the time of doing such private sound recording or private video recording; provided, however, that this does not apply if compensation for private sound and visual recording has been refunded for the relevant specified machine or specified recording medium pursuant to the provisions of the preceding paragraph.
(Cooperation by Manufacturers)
Article 104-5 If a designated association requests the payment of compensation for private sound and visual recording pursuant to the provisions of paragraph (1) of the preceding Article, a person that manufactures or imports specified machines or specified recording media in the course of trade (referred to as a "manufacturer, etc." in paragraph (3) of the following Article) must cooperate with the designated association in connection with the request for the payment of compensation for private sound and visual recording and in connection with its receipt.
(Amount of Compensation for Private Sound and Visual Recording) Article 104-6 (1)Before exercising the right to receive compensation for private sound and visual recording pursuant to the provisions of Article 104-2, paragraph (1), a designated association must fix the amount of such compensation and obtain the approval of the Commissioner of the Agency for Cultural Affairs. The same applies if the designated association seeks to change such amount.
(2) Before establishing the Cabinet Order referred to in the preceding paragraph or drafting an amendment to it, the Commissioner of the Agency for Cultural Affairs must consult the Culture Council.
(3) If the Commissioner of the Agency for Cultural Affairs finds it to be necessary in order to ensure the proper operation of functions related to an undertaking re-ferred to in paragraph (1), the Commissioner may issue any order that is necessary for supervising the relevant functions.
(Amount of Compensation for Private Sound and Visual Recording)
Article 104-6 (1) Before exercising the right to receive compensation for private sound and visual recording pursuant to the provisions of Article 104-2, paragraph (1), a designated association must fix the amount of such compensation and obtain the approval of the Commissioner of the Agency for Cultural Affairs. The same applies if the designated association seeks to change such amount.
(2) Notwithstanding the provisions of Article 30, paragraph (2), if the approval referred to in the preceding paragraph has been given, the amount of compensation for private sound and visual recording is the amount for which such approval has been received.
(3) Before applying for the approval referred to in paragraph (1) in connection with compensation for private sound and visual recording the payment of which is requested pursuant to the provisions of Article 104-4, paragraph (1), a designated association must hear the opinions of associations of manufacturers, etc. that are recognized as representing the opinions of manufacturers, etc.
(4) The Commissioner of the Agency for Cultural Affairs must not approve the amount of compensation for private sound and visual recording to which an application for permission under paragraph (1) pertains, unless it is found to be an appropriate amount in consideration of the purport of the provisions of Article 30, paragraph (1) (including as applied mutatis mutandis pursuant to the provisions of Article 102, paragraph (1)) and Article 104-4, paragraph (1), the ordinary rate of royalties for sound or visual recording, and any other circumstances.
(5) Before granting the approval referred to in paragraph (1), the Commissioner of the Agency for Cultural Affairs must consult the Culture Council.
(Rules on the Execution of Functions Connected with Compensation)
Article 104-7 (1) Before initiating the functions connected with compensation, a designated association must establish rules on the execution of functions connected with compensation and notify the Commissioner of the Agency for Cultural Affairs thereof. The same applies if the designated association seeks to amend such rules.
(2) The rules referred to in the preceding paragraph must include the particulars of the distribution of compensation for private sound and visual recording (limited to such compensation as paid pursuant to the provisions of Article 104-4, paragraph (1)), and the designated association must establish the particulars of the distribution in consideration of the purport of the provisions of Article 30, paragraph (2).
(Expenditures for Undertakings Related to the Protection of Copyright)
Article 104-8 (1) A designated association must expend an amount equivalent to the Cabinet-Order-specified rate of within 20% of the amount of compensation for private sound and visual recording (limited to such compensation as paid pursuant to the provisions of Article 104-4, paragraph (1)), for undertakings related to the protection of copyright and neighboring rights, as well as undertakings that contribute to promoting the creation of works and to their dissemination.
(2) Before establishing the Cabinet Order referred to in the preceding paragraph or drafting an amendment to it, the Commissioner of the Agency for Cultural Affairs must consult the Culture Council.
(3) If the Commissioner of the Agency for Cultural Affairs finds it to be necessary in order to ensure the proper operation of functions related to an undertaking referred to in paragraph (1), the Commissioner may issue any order that is necessary for supervising the relevant functions.
(Collection of Reports)
Article 104-9 If the Commissioner of the Agency for Cultural Affairs finds it to be necessary in order to ensure a designated association's proper operation of functions connected with compensation, the commissioner may have the designated association report on its functions connected with compensation or request it to submit its books, documents, and other materials, or may issue any recommendations necessary for improvement in the way in which the designated association executes its functions connected with compensation.
(Delegation to Cabinet Order)
Article 104-10 Other than what is provided for in this Chapter, the necessary particulars of designated associations and of the functions connected with compensa-tion are provided for by Cabinet Order.