Business in local authority and copyright
    Chapter 9 Sound Recordings in Carillon, MD and Tape

    9. Sound Recordings in Carillon, MD and Tape

    Q 9-1 The City Office is planning to set a time signal in the children's park by recording popular children's music in a carillon. Is there any problem of copyright?

    Answer

    An increasing number of carillons are set in such open places to the public as children's parks, which often function as a time signal. Some of them are established with mechanical dolls, and they are usually quite popular among the community people.

    The act of putting a children's song into a carillon to be played corresponds to sound recording (reproduction) under the copyright law. Therefore, if the copyright of the song has not expired yet (50 years after the death of the author), the author's economic right of reproduction applies to the act, which calls for his authorization. The concept of reproduction in the Copyright Law means any type of reproduction in a tangible form by means of printing, photography, sound or visual recording or otherwise, and therefore, sound recording is included in the concept of reproduction. For the authorization, as the rights of reproduction of the majority of musical works are collectively managed by JASRAC and other collective societies of musical works, it is appropriate first to contact such collective societies. As to the authors who are not members of JASRAC or any other collective society, it is necessary to contact each of them directly and obtain the authorization individually.

    The acts of shortening, modifying and arranging the music, when reproducing within a carillon, are usually covered by the author's economic right of adaptation and/or his moral right of integrity, and therefore, such acts any way call for the authorization of the author. As JASRAC is not managing the above rights, it is necessary to contact the author individually for the authorization.

    There used to be an exceptional provision (Article 14 of the Supplementary Provisions) in the Copyright Law, which provided for that the author's economic right of public performance did not apply to that making use of sound recordings of musical works. Therefore, the act of public performance of music by playing a CD was not covered by copyright but the act of public transmission of music by wire diffusion was covered. However, this provision was abolished in 1999.

    Contact Point
    for Further Information
    Japan Society for Rights of Authors, Composers and Publishers (JASRAC)
    Each music publisher
    Relevant Articles
    of the Copyright Law
    Article 20 on the moral right of integrity
    (xv), paragraph (1), Article 2 on the definition of reproduction
    Article 21 on the economic right of reproduction
    Article 27 on the economic right of adaptation
    Paragraph (7), Article 2 on the concept of musical performance
    Article 22 on the economic right of public performance



    Q 9-2 The city's Board of Education is planning to organize a seminar and to record the speeches of the invited experts to be lent in the city library as the form of CD-R. Is there any problem of copyright?

    Answer

    The term, "works of authorship" may remind people of such tangible things as novels in books, music in CDs, pictures and so on, however, unfixed speeches are also works protected by copyright in a number of countries (excluding some countries such as the USA). A speech, which is a production in which thoughts and sentiments are expressed in a creative way just like other works, corresponds to a literary work under the Copyright Law together with novels, dramas, articles, etc.

    The speaker of the speech has copyright as the author, and therefore it calls for his authorization to record the speech on tape, to reproduce the same tapes and to reproduce it in written proceedings. These acts all correspond to reproduction.

    Both of the acts of recording the unfixed speech on tape and reproducing it in an CD-R call for the authorization of the author (speaker).

    Authorization by the right owner is not needed when a municipal library lend a CD to the public without charge. Excluding the case of cinematographic works, the limitation clause of the Copyright Law applies and lending to the public for non-profit purpose without charge can be done without authorization.

    There are some cases that the board of education records the speech and store it for the purpose of preservation. However, this act also corresponds to reproduction and therefore, the authorization of the author (speaker) is also needed.

    As to the relation to Intranet, please see Q5-6 of "5. Internet and Website".

    Relevant Articles
    of the Copyright Law
    (i), paragraph (1) Article 10 on literary works
    Article 21 on the economic right of reproduction
    Paragraph (3), Article 37 on the exception for sound recording in Braille libraries
    Article 49 on uses of copies made by exceptional provisions for other purposes
    Paragraph(4) Article 38 on lending for non-profit purpose



    Q 9-3 The City Office organized a musical contest and made a CD of live recording to be sold, charging a fee no more than the actual expense. Is there any problem of copyright?

    Answer

    Pieces of music and songs played in a musical contest are musical works protected by copyright except for classical ones the copyright of which has expired.

    Performing music in a musical contest in front of the public corresponds to the act of public performance under the Copyright Law, which is covered by the economic right of public performance of the author. However, the Copyright Law provides for an exception that it is permissible to publicly perform a work already made public, without authorization of the author, for non-profit-making purposes and without charging any fees to audience or spectators (provided, however, that the performers concerned are not paid any remuneration for such performances).
    Therefore, if the musical contest was planned and organized by the city for non-profit-making purposes, charging no fees, the acts of public performance there were covered by the above-mentioned exception. (It should be quite rare the case that the participating performers are paid.)

    As to the act of making a live recording mentioned in the question, which was to record music and songs performed in the contest, it corresponds to reproduction under the Copyright Law, and therefore, covered by the economic right of reproduction of the author.

    Also, apart form the musical works, the performances of the participating singers and instrument players are also recorded, the act of which is covered by the economic right of reproduction of the performers. Attention should be paid to the fact that the act of recording live performances is included in the concept of reproduction. This right is granted to all performers whether the performer is a professional or an amateur.

    The act of making a live recording of a musical contest for sale is not covered by the exception for the reproduction for private use, either, because it is not for personal use, family use or other similar uses within a limited circle.
    In short, the case mentioned in the question is covered by the economic rights of reproduction of both the authors and the performers, and therefore, the authorization should be obtained from both the authors (in practice, when the author entrusts the rights to a collective society of musical works, from JASRAC or any other relevant collective society) as well as all the participating performers.

    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 (1), Article 38 on the exception of public performances for non-profit-making purposes
    Article 30 on the exception for reproduction for private use
    Article 91 on the economic right of reproduction of performers



    Q 9-4 A well-known songwriter made the school song of one of the city's public high schools, which became popular among the people. However, the tapes of its parody song with changed words are sold in various places. How can it be stopped?

    Answer

    The author of the school song is the songwriter, who actually created it. The majority of well-known songwriters are members of JASRAC, and in this case they have entrusted all their relevant rights to JASRAC including those of the works to be created in the future. However, in the case of such a work created by an individual order as the case of the question, the relevant author (a member of JASRAC) may transfer the economic rights to the customer or authorize a certain range of uses stipulated in the contract, with the consent of JASRAC.

    In the case of the question, if the economic rights in terms of the school song have been transferred to the city, it is the right owner, however, the moral rights still remain on the author's side.

    The parody song is made by changing the words, and therefore, making a parody song without authorization may constitute an infringement of the moral right of integrity. Also, the use of the parody song may be an act considered to be infringement of the author's moral rights.

    The making of a parody song may also correspond to an adaptation of the original, which is covered by the author's economic right of adaptation, and therefore, calls for his authorization.

    The city, if it has obtained the economic rights by transfer, can claim cessation to the infringer based on the right of reproduction and/or adaptation. Also, the original author may claim cessation based on his moral right of integrity.
    However, if the parody song was made and developed spontaneously by a number of people, it should be difficult to identify the infringer(s).

    Contact Point
    for Further Information
    Japan Society for Rights of Authors, Composers and Publishers (JASRAC)
    Relevant Articles
    of the Copyright Law
    Article 20 on the moral right of integrity
    Article 27 on the economic right of adaptation
    Article 61 on the transfer of copyright
    Paragraph (6), Article 113 on the acts considered to be infringement of author's moral rights



    Q 9-5 The City Office is planning to make a CD, recording the songs performed by the members of the city's folk song club, to distribute the copies to visitors to the city's culture festival. Is there any problem of copyright?

    Answer

    The majority of folk songs are quite old, and therefore, their authors are usually not identified and their copyrights have mostly expired. In the case of such old folk songs, it is not necessary to care about copyright. However, if a folk song is a newly made one still protected by copyright, it is necessary to obtain the authorization of the author (or if the author entrusts the rights to a collective society of musical works, from JASRAC or any other relevant collective society) for reproduction. Also, if it is an old folk song with the tones newly arranged and/or words newly changed, the newly created part may be protected by copyright.

    As to the performances carried out by the members of the folk song club, such members are protected as performers by the Copyright Law, and they are granted the economic right of reproduction. This right is granted to both professionals and amateurs. Therefore, to record their performances, it is necessary to obtain the authorization of all of them.
    As to the act of reproducing the first CD (mother CD) into many tapes to be distributed, the necessity of the authorization depends on the first contract (authorization). If the first authorization covers such further reproduction, too, there will be no problem. However, if the first authorization is only for the fixation (first recording), further authorization will be needed to produce the first fixation.

    Therefore, at the first authorization, it should be clarified that the authorization covers both fixation and further reproduction.

    Contact Point
    for Further Information
    Japan Society for Rights of Authors, Composers and Publishers (JASRAC)
    Relevant Articles
    of the Copyright Law
    Article 51 and 52 on the term of protection of economic rights
    (xiii), Paragraph (1), Article 2 on the definition of sound recording
    Article 21 on the economic right of reproduction

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