8. City's History Book, Picture Postcard, Poster, Monument Engraved with Works, etc.
| Q 8-1 | Celebrating the 30th anniversary, the city is planning to edit and publish its History Book including old newspaper articles copied in some pages. Is it necessary to ask for the authorization of the newspaper companies? |
Answer
It is necessary to obtain the authorization of all the relevant newspaper publishers.
The majority of newspaper articles are protected by copyright. Although "news of the day and miscellaneous facts having the character of mere items of information" are not protected, such articles are rare except for very short ones such as the notice of someone's death. Ordinary newspaper articles are written with creativity in terms of the expressions of the sentences, the titles and so on, and therefore, correspond to works of authorship protected by the Copyright Law.
Also, pictures on news papers are cinematographic works under the Copyright Law and therefore, protected by copyright.
To use a newspaper page as a whole in the city's history book by reducing and reproducing it, it is necessary to obtain the authorization of not only the right owners of all the articles and pictures but also the right owner of the edited page as a whole. Each page of a newspaper corresponds to a compilation under the Copyright Law, because the selection and arrangement of the components is done in a creative way.
Among the articles and pictures, those created by the employees of the newspaper publisher, without the names of the creators, are those created as their duties and made public under the name of the publisher, and therefore, correspond to "works made by an employee in the course of his duties", the copyright of which is owned by the publisher.
Also, the copyright of the newspaper pages as compilations is owned by the publisher because the selection and arrangement of the articles and pictures is usually done by the employee of the publisher, and therefore, the compilations are also "works made by an employee in the course of his duties".
In short, to reproduce newspaper pages in the city's history book, it is necessary to obtain the authorization of the newspaper publisher, in terms of the pages as compilations and individual works such as articles, pictures, etc., as well as other individual authors, if any, in terms of the works created and reproduced in the newspaper.
| Contact Point for Further Information |
Japan Newspaper Publishers and Editors Association (NSK) |
|---|---|
| Each Newspaper Publisher | |
| Relevant Articles of the Copyright Law |
Paragraph (2), Article 10 on news of the day and miscellaneous facts |
| (viii), Paragraph (1), Article 10 on photographic works | |
| Article 12 on compilations | |
| Article 15 on works made by an employee in the course of his duties |
| Q 8-2 | The city is planning to make a stone monument of a touristic site in the city, engraving it with the lyrics of a song, which was made based on the image of that site. Is there any problem of copyright? |
Answer
There must be a number of touristic places in which a stone monument is set, which is engraved with the lyrics of a relevant song.
The act of engraving the monument with the lyrics of a song corresponds to the reproduction of a musical work under the Copyright Law. Reproduction of lyrics may sound like recording in a CD or copying in a song book, however, engraving a stone is nothing but reproduction.
Therefore, the authorization of the author is needed to carry out this reproduction, and this authorization can be obtained directly from the right owner (when the right owner does not entrust the right to any collective society) or through JASRAC or other collective societies of musical works in terms of the musical works of its members (otherwise, the authorization of each author himself is needed). The fee for the case of engraving a stone monument is set by JASRAC in terms of the number of the musical works to be reproduced rather than the number of the monuments (copies). The same policy applies to such cases as reproducing musical works on panels, posters, etc. to be exhibited in the places open to the public.
Attention should be paid to the possibility to be considered as an infringement of the author's moral right because of the way to make and/or set the stone monument. Paragraph (6), Article 113 of the Copyright Law provides for that an act of exploitation of a work prejudicial to the honor or reputation of the author is considered to constitute an infringement on his moral rights. Moral rights of authors are exclusively personal to him and inalienable, and JASRAC is not carrying out the management of such rights. Therefore, making and setting a stone monument, it is better to consult the author directly to obtain his/her approval in terms of the way to exhibit the work.
| Contact Point for Further Information |
Japan Society for Rights of Authors, Composers and Publishers (JASRAC) |
|---|---|
| Relevant Articles of the Copyright Law |
(ii), paragraph (1), Article 10 on musical works |
| Article 21 on the economic right of reproduction | |
| Paragraph (6), Article 113 on the acts considered to be infringement of author's moral rights |
| Q 8-3 | The City Office installed a statue created by a contemporary artist in the city park, and it became popular among the people. Therefore, the City Office is planning, for the promotion to attract tourists, to copy it in posters and postcards and sell them in touristic and cultural facilities. Is there any problem of copyright? |
Answer
It seems that the city bought the statue for installing it in the city park, which means that the city has the ownership of the statue as a tangible existence.
However, as has been explained, the ownership of a tangible existence is different from the ownership of copyright. In other words, owing a work does not necessarily mean owing its copyright. It is usually the case that, even if the ownership is transferred, the copyright is not assigned. Copyright is granted to a work, which is an intangible existence.
The following explanation is based on the assumption that the copyright is not transferred to the city. In the case of an original artistic work located in open places, the economic rights are limited considerably. For example, if someone takes a picture in the park, it is possible that the statue installed in the park is also reproduced in the picture. However, in such a case, the economic right of reproduction does not apply. It would not be accepted by the general public that such an act of reproduction also calls for the authorization of the author.
On the other hand, however, it would be also unreasonable to make all types of exploitations free from copyright. Therefore, Article 46 of the Copyright Law provides for the cases in which the authorization of the author is needed and those in which it is not needed. For example, the authorization of the author is needed when such an artistic work is reproduced exclusively for the purpose of sale.
Reproducing an artistic work for postcards and posters is the most typical way of exploitation of such a work, and therefore, the making of such postcards and posters for sale should be done with the authorization of the author.
| Contact Point for Further Information |
Japan Artists' Association |
|---|---|
| Each author | |
| Relevant Articles of the Copyright Law |
Article 206 of the Civil Code on 91 on ownership |
| Article 46 on the exploitation of an artistic work located in open places |
| Q 8-4 | Celebrating the 100th anniversary of the city, the municipal government invited public participation in the design of a new mascot character of the city. Copyright of the winning design has been transferred to the city. However, similar character goods are sold in souvenir shops in a neighboring prefecture. How could the copyright and interest of the city be protected? |
Answer
An increasing number of local bodies are now trying to make use of a mascot character for their developments of the economy, tourism, etc. and it is now a fad among such bodies. Such mascot characters are generally protected by copyright as artistic works. In the case of the winning work in a public participation, copyright belongs to the creator of the mascot character. In many cases, as the public body usually would like to make use of the character in various ways, the guideline or the condition for applicants usually says that the copyright of the winning work should be transferred to the city. In the case of the Question, it seems that the copyright was transferred to the city in a similar way. It should be noted here that, as such a work is often used by the city after making some changes from the original, it would be better for the city to obtain the authorization of the author for such changes not to make any infringement of the moral right for integrity, which cannot be transferred by contract.
When some goods of a similar design are sold in souvenir shops in a neighboring prefecture, there can be various cases as the following:
(1)
In the case that someone in the prefecture created a similar character, based on the city’s winning character, and is selling its goods, it constitutes an infringement of the right of adaptation under the Copyright Law. It depends on the level of the “similarity”. However, if the essential points of the expression of the original work as an artistic work can be perceived in the similar character, the creation of the similar one constitutes the above infringement, and therefore, the city as the right owner may claim for the prohibition of the production/sale of the similar character goods. Also, if the souvenir shops bought the goods knowingly, the city may claim for the prohibition of the sale and the relevant damages also to the souvenir shops.
(2)
In the case that the two similar characters were created independently by chance, the city as the right owner cannot take any legal action. The right of adaptation under the Copyright Law applies to the act of adaptation of a preexisting work and this right does not cover the case that two incidentally similar works have been created independently.
(3)
In the case that the creator of the city’s character transferred the copyright to the city as well as to the producer of the similar goods, both of them can claim the ownership of the copyright of the character. Copyright is for intangible works, and therefore, double contracts of transfer can be made quite easily. In such a case both of the successor have obtained the copyright in a formal and legal way. For a successor would like to claim the ownership of copyright against others the Copyright Law provides for a registration system in terms of the transfer of copyright. If the author made double contracts of the transfer of copyright, the successor who has registered the transfer first will be considered as the authentic owner of the transferred copyright. This system is similar to that for the registration of the ownership of real estate. Therefore, if the city authorities have registered the transfer of copyright before the producer of the adapted goods, the former can claim the cessation of the reproduction/adaptation of the work. When there is any risk of double contracts it will be better to register the transfer as soon as possible, which can be done at the Agency for Cultural Affairs of the government.
Also, in the case of mascot character, it would be better not only to register the transfer of copyright but also to apply for the right of trademark.
| Contact Point for Further Information |
Copyright Division of the Japan Copyright Office (JCO), Japanese Government |
|---|---|
| Relevant Articles of the Copyright Law |
Article 20 on the right to preserving the integrity |
| Article 21 on the economic right of reproduction | |
| Article 77 on registration | |
| Article 78 on procedures for registration | |
| Article 112 on cessation | |
| Article 113 ((ii) paragraph 1) on acts considered to be infringements | Article 114, Article 114bis-114quinquies on claim for damages |
| Paragraph(1) Article 113 on acts deemed as infringement |
| Q 8-5 | How can a scenery picture be used for tourism publicity posters and Websites, the author of which cannot be located? |
Answer
It calls for the authorization of the author to use a photographic work in a poster or a Website. It is therefore needed to look for and find the author, contact him/her and obtain the authorization.
However, especially in the case that the picture was created and disclosed long time ago, it is often quite difficult to identify and/or locate the author. The question is a case in which the author has been identified but cannot be located. Also in such a case, in principle, the work cannot be used without authorization.
However, to cope with this problem, namely when the right owner cannot be known or located, the Copyright Law provides for a compulsory license system, by which a work can be used without authorization of the right owner by a compulsory license issued by the Commissioner of the Agency for Cultural Affairs.
Before the amendment of the Copyright Law in 2009, the conditions to use this system were strict and there had been only few precedents, however, by this amendment such conditions were eased and the possibility to use this system was drastically expanded. Also, the objects of this compulsory license system were expanded from works to performances, phonograms, broadcasting programs and wire diffusion programs. The concrete and conditions are provided for in the relevant governmental ordinances, which are roughly described below, and for further details, please contact the Copyright Division of JCO (Japan Copyright Office) of the Agency for Cultural Affairs.
Firstly, to request the compulsory license, it is not sufficient that the right owner cannot be identified or located, but significant efforts to identify/locate the right owner should have been made. Based on the amendment of the Copyright Law in 2009 the concrete meaning of "significant efforts" was provided for in the relevant governmental ordinance. In more concrete terms, such efforts as survey in publications on the information of relevant authors, inquiry to relevant collective societies, inquiry through newspapers and the Website of CRIC (Copyright Research and Information Center) are required.
Also, the user should wait for the issue of compulsory license before the amendment; however, the new provision provides for that the work can be used before the issue of compulsory license by depositing compensation, the amount of which is designated by the Commissioner of the Agency for Cultural Affairs. Even if the compulsory license is not issued after all, the use while waiting for the judgment does not constitute infringement.
| Contact Point for Further Information | Copyright Research and Information Center (CRIC) |
|---|---|
| Copyright Division of the Japan Copyright Office (JCO), Japanese Government | |
| Relevant Articles of the Copyright Law | Article 67 on the compulsory license |
| Article 67bis on exploitation of a work while applying for a compulsory license |
| Q 8-6 | A picture of an antique owned by the city is in an art book, however, a publisher used the picture in another book without authorization. Does the city have any right to stop it as the owner of the antique? |
Answer
It seems impossible to take any legal action against the publisher.
The city is the owner of the antique, and therefore, can control any use of it as a tangible existence. The term, tangible existence, is not often used in daily conversations and may not be easy to understand, however, it simply means ordinary "thing". The controlling of the use of a tangible thing means, for example, exhibiting it in a museum, lending to someone, etc.
Taking a picture of the antique for the first time calls for an approval of the owner, because the owner himself should put it in front of the photographer, which is one of the styles of the control over the tangible existence.
However, as the ownership of a thing simply means the controlling power over the tangible existence, once its picture is taken, the ownership of the antique would not reach the use of the picture in the future. Therefore, the owner of the antique cannot stop any exploitation of the picture by anyone including other publishers.
Also, the antique seems to correspond to an artistic work, however it is not possible to stop the use of the picture based on its copyright, because the term of protection of works of authorship expires 50 years after the death of the author. The terms of protection of almost all antiques have already expired.
However, if there was a contract between the city and the first publisher which stipulates that the publisher should not allow anyone to make use of the picture, the situation is different. If the first publisher allowed another publisher to copy the picture in spite of the contract, the city may sue the first publisher for a breach of contract, but even in this case, it is impossible to sue the second publisher directly.
The picture itself is usually protected by copyright, and in the case of the question, the copyright seems to be owned by the first publisher. Therefore, if the second publisher reproduced the picture without authorization of the right owner (the first publisher) the first publisher may claim cessation and/or damages. However, also in this case, the city cannot sue the second publisher.
| Relevant Articles of the Copyright Law |
Article 206 of the Civil Code on 91 on ownership |
|---|---|
| (vi), paragraph (1), Article 10 on artistic works | |
| (viii), paragraph (1), Article 10 on photographic works | |
| Article 51 on the term of protection of author' economic rights | |
| Relevant Legal Background |
Judicial precedent of the right for portraits: ・Supreme Court 20th January 1984 (Case of Ganshinkeijishokenchukokushincho) |