Business in local authority and copyright
    Chapter 3 TV Programs Recorded on Video Tape

    3. TV Programs Recorded on Video Tape

    Q 3-1 The Welfare Division of the City Office often records TV programs on welfare issues, making a small library within the division and showing them in the lobby of the office. Is there any problem of copyright?

    Answer

    Recording a TV program on video tape corresponds to the act of reproduction under the Copyright Law. A number of people are doing such recording at home, which is permissible as reproduction for private use by Article 30 of the Copyright Law. However, reproduction for business purposes (both profit-making and non-profit-making) is not covered by this exception, and therefore, the act of reproduction carried out by the Welfare Division itself is already an infringement of copyright, not to mention the making of a library and showing them to the public. There is no exception of the right of reproduction targeting governmental bodies.

    Then, whose economic right of reproduction is infringed? As to ordinary TV programs, a number of right owners are involved in the making. The TV programs mentioned in the question are probably documentary-style ones on welfare issues, and therefore, such right owners as actors and scenario writers may not be involved in. However, there may have been a number of people, e.g. a professional writer, welfare experts, an interviewer, interviewees, composers of the background music, performers of such music, producers of phonograms of such music, the broadcaster, and so on, who participated in and contributed to the production of the program.

    The contents involved in the program, in terms of the Copyright Law, are literary works, musical works, performances, phonograms, broadcasting programs, and so on, and all the right owners of such contents hold the economic right of reproduction as a part of the author's rights or neighboring rights of performers, phonogram producers and broadcasters.

    The act of reproduction of a TV program without authorization infringes the economic rights of all those right owners, and it corresponds to the concept of piracy. Even if it is based on goodwill to contribute to welfare, the public authorities should not infringe people's rights by unlawful actions.
    Therefore, to make a copy of a TV program for such a public purpose, it will be necessary to obtain the authorization of all the relevant right owners. However, there is so far no one-stop contract point to cover the rights of all such right owners for contract. Also, it is virtually impossible to find all the right owners and obtain the authorization of all of them because of the time and other resources which would be needed. As there could be some TV programs the number of right owners of which is relatively small, it is anyway better to contact the broadcaster. Some TV programs with high demand are published and sold as vide tapes.

    Contact Point
    for Further Information
    National Association of Commercial Broadcasters in Japan (NAB)
    Nihon Hoso Kyoukai (NHK)
    Relevant Articles
    of the Copyright Law
    Article 21 on the economic right of reproduction of authors
    Article 91 on the economic right of reproduction of performers
    Article 96 on the economic right of reproduction of phonogram producers
    Article 98 on the economic right of reproduction of broadcasters
    (xv), Paragraph (1), Article 2 on the definition of reproduction



    Q 3-2 In my school teachers often record TV programs of educational movies, making a library within the school and showing them in the audiovisual room of the school to PTA members and teachers. Is there any problem of copyright?

    Answer

    It seems that, as "educational movie" is mentioned in the question, such a movie has been produced by a movie company rather than the broadcaster. Article 38 of the Copyright Law provides for an exception for mechanical presentation of moving and non-moving images for non-profit-making purposes, and the act of presentation to the public mentioned in the question is also covered by this exception. However, in the case of the above question, the act of recording (reproduction) itself is already an infringement of copyright.

    As has been explained in Q 3-1, the act of recording a TV program on video tape corresponds to the concept of reproduction. Therefore, recording a TV program without authorization of the relevant right owners constitutes an infringement even if it is done for non-profit-making purposes to show it to PTA members and teachers in the audiovisual room of the school. Just like the case of Q 3-1, this case also is not covered by the exception for reproduction for private use, which is provided for in Article 30 of the Copyright Law.

    The relevant right owners include, in addition to those mentioned in Q 3-1, the maker (company) of the movie. Actually, as the broadcaster just broadcasts a preexisting movie in this case, the majority of the relevant right owners are those involved in the production of the movie rather than the TV program. Even in the case of Q 3-1, if the broadcaster itself makes a recorded TV program before the broadcasting, which is actually the way to produce the majority of TV programs, the broadcaster obtains the status of the maker of a movie under the Copyright Law, however, it is not mentioned in Q 3-1 in order to avoid complexity in terms of complicated legal rules for such right owners as performers.)

    Article 29 of the Copyright Law provides for that the economic rights of a cinematographic work belong to the maker (movie company) of the movie when such authors of the movie as the director (excluding the employees of the maker) have undertaken to participate in its production by a contract with the maker. The majority of commercially-made movies belong to this category. However, the maker does not own all the relevant rights of the movies. It only has the economic rights of the movie as a whole, excluding the rights in the works reproduced or adapted within the movie, such as the original story, the scenario, the musical works (the rights of which are collectively managed by JASRAC), and so on. Also, the moral rights are continuously held by the authors of the movie.

    The broadcaster also has the right of reproduction as a part of its neighboring rights in terms of the program (movie) after it has been broadcast, and there are anyway a lot of right owners in the TV program. Therefore, it seems extremely difficult to obtain authorization from all those right owners. If the movie company is selling video tapes of the movie, it must be much easier to buy one.

    Video recording of a TV program is quite easy these days, however, such an act which is not covered by the exceptions provided for in the Copyright Law always constitutes an infringement even if it is for non-profit-making purposes for education or academic research.

    Contact Point
    for Further Information
    Japan Association of Audiovisual Producers
    Relevant Articles
    of the Copyright Law
    Article 38 on the exception for cinematographic presentation for non-profit-making purposes
    Article 29 on the ownership of economic rights in cinematographic works



    Q 3-3 The Tourism Division of the City Office made a TV program, but after it was broadcast, the DVDs of the program are sold in souvenir shops. As it was made by the public resources of the City, is it possible to claim any fee?

    Answer

    It seems that the TV program was made by the Tourism Division, rather than by the broadcaster, and it preexisted in the form of video tape before the broadcasting. This means that the program corresponds to a cinematographic work under the Copyright Law. Namely, if the DVDs were made without authorization, all the relevant right owners including the city can not only claim compensation but also sue the infringer, who made the DVDs.

    The right owner of a cinematographic work is the maker of the movie when the authors have undertaken to participate in its production by a contract with the maker as has been explained in Q 3-2, and the maker of a cinematographic work is defined by the Copyright Law as "those who take the initiative in, and the responsibility for, the making of a cinematographic work".
    As to the case of the question, which says that the Tourism Division made the movie, it might be possible that the movie was made solely by the officials working in the division including the planning of the whole movie, the writing of the scenario, the selection of and negotiation with the actors, the shooting of the scenes, the editing and completion as a movie, and so on. In this case, the city itself has the status of the author of the movie because the officials involved in the making were employed by the city. However, it is virtually impossible for the city officials to make a movie, unless it is an amateur low-quality one, and therefore, it is usually the case that the division just makes a basic plan of the movie, orders a film maker by contract to make it, and pays money for it. In such a case, just hitting upon an idea to make a movie, ordering it and paying money do not correspond to "taking the initiative and the responsibility". This expression in the law seems to correspond to the maker of the movie which creates it based on the contract with the city.

    Therefore, if the city would like to obtain the economic rights in the movies, it should make a contract, with the movie maker, which stipulates the assignment of such rights. However, as the movie maker is usually reluctant to transfer all rights, it might be a more realistic practice to make a contract which does not transfer the rights but allow the city to carry out a wide range of use including reproduction, distribution, presentation, broadcasting and so on. In this case, the city cannot stop the exploitation done by others.

    Relevant Articles
    of the Copyright Law
    Article 63 on authorization of exploitation
    (x), paragraph (1), Article 2 on the definition of maker of cinematographic works
    Article 29 on the ownership of economic rights in cinematographic works



    Q 3-4 TV programs to show the discussions at the Parliament are often recorded in the City Office, and the video tapes are shown in the city's facilities to the public. Is there any problem of copyright?

    Answer

    The case mentioned in the question seems to be the video recording of live broadcasting of the Parliament sessions carried out by the officials of the city themselves. If the video tape is made and sold by the broadcaster or other companies authorized by the broadcaster, there is no copyright problem for the city to buy some, distribute them to the city's facilities, and present them to the public. This act is permissible by the exception for presentation for non-profit-making purposes, which is provided for in Article 38 of the Copyright Law. If a cable TV system is used, it is necessary to obtain the authorization of the relevant right owners.

    However, before discussing the act of presentation to the public, if the video tape is made without authorization, there could be a problem in terms of the economic right of reproduction just like the cases of many other proceeding questions. The contents of the discussions, questions and answers at Parliament sessions are literary works of authorship, and therefore, protected by the Copyright Law. Paragraph (2), Article 40 of the Copyright Law provides for that it is permissible to reproduce in the press, broadcast or diffuse by wire speeches which are delivered in public by organs of the State or local public entities, however, video recording is not covered by this exception. Also, the video recording of a TV program is also related to the economic right of reproduction held by the broadcaster as a part of its neighboring rights. Therefore, video recording of such a program without authorization of the relevant right owners would constitute an infringement of the right of reproduction of such people.

    In the case of the question, if the video tape was made by someone else, without authorization, and was obtained by the city, the act of public presentation does not constitute an infringement because of the exception provided for in Article 38 of the Copyright Law. It is considered as an infringement to distribute or possess for distribution such a pirated copy, knowing the infringement, by Article 113 of the Copyright Law, however, just presenting the video tape to the public is not covered by this article. Therefore, in such a case, the city would not be accused by the infringement of reproduction right in the legal terms, however, it may be criticized for using such a pirated video tape.

    Relevant Articles
    of the Copyright Law
    Article 21 on the economic right of reproduction
    Article 98 on the economic right of broadcasters
    Paragraph (1), Article 38 on the exception for presentation for non-profit-making purposes
    Paragraph (2), Article 40 on the exception for the use of political speeches
    (ii), paragraph (1), Article 113 on acts considered to be infringements

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