Case Study3 Library & Copyright

    The recent and rapid development of internationalization and information technologies is making an increasing number of people concerned and interested in copyright issues, and an increasing number of books on the outline of the Copyright Law and copyright systems are being published by various publishers and organizations.

    Such books are widely used by a number of experts and practitioners working on copyright businesses in general, however, one should pay attention to the fact that not only such experts but also many other people now need knowledge and information on copyright rules. Some of them say, for example, "I now need to learn just this point and aspect of the copyright rule rather than every corner of the copyright legislation and systems." Some others say, "I would like to know the relationship between copyright and my business." This means that new types of introductory and explanatory booklets are needed, which possibly take a different approach to copyright rules and knowledge from the pre-existing copyright books.

    The Copyright Research & Information Center (CRIC) planned to publish a series of booklets on case studies with a view to responding to such needs. This booklet is the third Volume of such booklets published first in April 2000 and revised continually based on the revisions of the Copyright Law as well as the frequently asked questions of the readers. This new edition has been further revised, incorporating the contents of the major amendment of the Copyright Law in 2009, adding some relevant questions and explanations.

    The booklets of this Case Study Series are continually published every year, so far up to Volume 3, taking up various issues and aspect of copyright systems, cooperating with relevant experts and the JCO (Japan Copyright Office) of the Government. We do hope that the present booklet will contribute to the further understanding of copyright systems in the libraries of this country.

    CRIC (Copyright Research & Information Center)

    TABLE OF CONTENTS


    Q1. Is it permissible for all libraries to provide copying services without authorization of the author?

    Answer

    The exception for copying services for the library does not apply to all libraries.

    Article 31 of the Copyright Law, which provides for the exception for reproduction at libraries, has been established, considering the functions of libraries for the contribution to public interests, so that such libraries as the National Parliamentary Library and those designated by the relevant Cabinet Order (e.g. local public libraries and University libraries) may provide the users with copying services without authorization of relevant right owners.

    Therefore, those libraries which are not included in the above-mentioned libraries, including the National Parliamentary Library, should obtain the authorization of relevant right owners to start copying services.

    The designated libraries are the following. Also, there should be professional librarians or other equivalent staff members who have completed the copyright education program designated by the Commissioner of the Agency for Cultural Affairs.

    1. Local public libraries under Article 2 of the Library Law established by prefectures or municipalities
    2. Libraries of universities/colleges or colleges of technology
    3. Libraries of other post-secondary education institutions
    4. Facilities established by law which have a function to collect, preserve and provide for public use originals and/or copies of books and other materials (e.g. local public museums)
    5. Research facilities established by law which have a function to preserve and provide books and other materials (e.g. Japan Atomic Energy Research Institute)
    6. Facilities similar to above 5 or 6 established by the national/local authorities or public-interest-making corporations under the Civil Code which are designated individually by the Commissioner of the Agency for Cultural Affairs (29 facilities such as the Japan Doctors' Association Library and the Tokyo Commerce Chamber Economic Materials Center Library)

    Therefore, the above exception of copying services does not apply to libraries within schools, private companies or community learning centers. However, libraries within local community centers established as branches of local public libraries are covered by this exception, which became easy to be established this way by the Government ordinance in October 2006.




    Q2. Is it permissible to provide copying services by a copying machine for public use set up by the library?

    Answer

    No. It is not permissible under Article 31 of the Copyright Law for any library to let library users make use of a copying machine for public use in order to make a copy of a book or other materials.

    The copy which can be made by the exception provided for in Article 31 of the Copyright Law should not be made by the library user but by the library itself (by the person and the machine of the library).


    Article 31 of the Copyright Law (extract)
    1 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 the National Parliamentary Library and other libraries and similar establishments which are designated by Cabinet Order, having the purpose, among others, to offer library materials for the use by 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 of 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 print or for other similar reasons.
    2 (omitted)


    Sub-Committee No.4 of the Copyright Council of the Agency for Cultural Affairs, which had discussed the issue of reproduction in the library, reported that the reproduction without authorization under the exception provided for by Article 31 of the Copyright Law should be carried out exclusively by the library, and therefore, the act of such reproduction should be done under the control of the library, making use of the human and physical resources under the management of the library; with a view to ensuring appropriate application of this exception, the Ministry Ordinance for the Implementation of the Copyright Law provided for in its Article 1ter that the library should have as its staff members qualified personnel, i.e. librarians or other equivalent experts,* as the condition to carry out the act of reproduction under Article 31, and therefore, to let library users reproduce library materials by making use of a copying machine for the use of the public seemed to constitute infringement. However, this report also said that there was an opinion that the simple act of making copies by using a copying machine could be carried out by the library user under the condition that the whole process from the request of the material to be copied to the distribution of the copy was kept strictly appropriate by the library.
    As humble copying machines are prevailing in a number of places including libraries, the Japan Reproduction Rights Center (a public-profit corporation) and a number of university/college libraries reached an agreement, after a considerably long negotiation, that the use of copying machine for the use of the public is permissible under the following five conditions, which may be applied to other cases.
    (1) The library should designate for each copying machine an employee responsible for its use (also, an assistant).
    (2) The above-mentioned employee should be a professional librarian or another equivalent expert.
    (3) The above-mentioned employee should work in a place from which the use of the copying machine for which he/she is responsible can be observed.
    (4) The library should record the working time of all copying machines.

    * Ministry Ordinance for the Implementation of the Copyright Law
    Article 1ter (Employee Equivalent to Librarian)

    The employees equivalent to librarians stipulated in the Cabinet Order for the Implementation of the Copyright Law are those corresponding to one of the following categories who take charge of professional or other equivalent business of a library (hereinafter referred to as "library business").
    (i) Those who can be qualified as a librarian under Paragraph 2, Article 4 of the Library Law.
    (ii) Those who can be qualified as an associate librarian under Paragraph 3, Article 4 of the Library Law who, after having had the qualification, have more than four years of experience of library business.
    (iii) Those who passed the Examination for Service, which is implemented by the National Personnel Authority, for government posts the duty of which calls for expertise concerning library.
    (iv) Those who graduated from a university/college or a college of technology who have more than one year of experience of library business and have completed the training program of copyright designated by the Commissioner of the Agency for Cultural Affairs.



    Q3. Is it permissible for a user of a library to make a full copy of a book for "private use" (under Article 30 of the Copyright Law), making use of a copying machine for public use set up by the library?

    Answer

    No. It may constitute infringement.

    Article 30 of the Copyright Law provides for a limitation of copyright for so-called "private use". The limitation/exception provisions in the Copyright Law are to limit the exclusive rights of the author to determine and authorize whether his/her work should be exploited with a view to pursuing a part of the provision on the purpose of the Copyright Law: "having regard to a just and fair exploitation of these cultural products."


    Article 30 (Reproduction for private use) of Copyright Law
    (1) It shall be permissible for a user to reproduce by himself a work forming the subject matter of copyright (hereinafter in this Subsection referred to as a "work") for the purpose of his personal use, family use or other similar uses within a limited circle (hereinafter referred to as "private use"), except in the following cases:
    (i) where such reproduction is made by means of automatic reproducing machines ("automatic reproduction machine" means a machine having reproducing functions and in which all or main parts of reproducing devices are automatic) placed for the use by the public.

    This article applies only to the limited scope of reproduction for "personal use, family use or other similar uses within a limited circle", and the typical cases are the audiovisual fixation of TV programs at home and the recording of FM radio programs for strictly personal use. Some people call such uses minor uses within a limited circle.

    Therefore, (i)(1) of Article 30 provides for, as the general rule, that the act of reproduction making use of an automatic reproducing machine for the use by the public is not covered by the exception of the reproduction for private use. This means that such an act as the reproduction of a rental video making use of a high-speed dubbing machine for public use set up within a vide rental shop is out of the scope of this exception, and therefore, calls for the authorization of the right owner.

    However, automatic reproducing machines for writings and printings have already been diffused everywhere, e.g. convenience stores, and the number of the right owners from whom the authorization of reproduction should be obtained is extremely large. Also, although the Japan Reproduction Rights Center (a public-profit corporation) collectively manages the right of reprographic reproduction of a number of authors, its system is not sufficient yet to cope with all the acts of reproduction in convenience stores and other many places. It would not be appropriate, at least at the present stage, to make all such acts illegal, and therefore, Article 5bis of the Supplementary Provisions of the Copyright Law provides for, as a tentative provision until a full collective management system has been established, that automatic reproducing machines exclusively for use in copying "writings or printings" should be excluded "for the time being" from the scope of the automatic reproducing machine in Article 30. Therefore, it does not constitute infringement under the present Copyright Law to copy a whole book for private use, making use of a copying machine in a convenience store for public use.

    However, the act of reproduction within a library is to be covered by Article 31, which provides for strict conditions, e.g. the copy should not be all of a work but just a part of it, and therefore, it would constitute infringement to let library users make use of a copying machine set up by the library so that they may make full copies of books.

    Article 5bis of the Supplementary Provisions of the Copyright Law provides for the above exclusion only as a "tentative provision", and therefore, the use of automatic reproducing machines placed for the use by the public "within a library" should be interpreted in terms of the general/regular rules of the Copyright Law.




    Q4. What is the meaning of "a part of a work", which can be copied by the exception of copying service of the library?

    Answer

    "A part of a work" is interpreted as "less than 50%", namely, if the book is of 100 pages "a part" means "50 pages" at most.

    Even if the book is a compilation of a number of short novels, "a part of a work" means less than 50 % of each of the novels rather than less than 50% of the whole book.

    There was a court case the point in which was how much part of an encyclopedia may be reproduced under the exception of Article 31. (A library had refused the request of a user to make a copy of all part of just one item within an encyclopedia.) The court said that the request was to make a copy of all part of one work, and therefore, was not covered by the exception under Article 31, which limited the scope to "a part of a work". (Tokyo District Court, 28 April 1995) This means that each item of an encyclopedia is an independent work.

    Apart from literary works, such a work as a map may be difficult in terms of the interpretation of "a part". If a map is of two pages of a book one page can be copied by the exception of Article 31. However, the purpose of the reproduction should be the user's "investigation or research".

    Also, such works as pictures and paintings usually cannot be used if only a part is reproduced, and therefore, it seems that they are hardly copied by Article 31. An agreement was made in January 2006 between Libraries' associations and right owners' organizations in terms of the incidental reproduction of very short works such as one short item within a dictionary of a short poem copies in libraries. Such short works can be copied easily as a whole together with another work copied by the above exception, which may violate the above-mentioned exception rule. The Guideline made based on the above agreement says that the right owners who participated in the agreement would not claim against the incidental reproduction of the whole part of their works which are on the same page. (See "Guideline for Incidental Reproduction" within "Reference Materials" in the website of the National University Library Association)




    Q5. What is the meaning of "a periodical already published for a considerable period of time", all of an individual work in which can be copied by the exception of copying service of the library?

    Answer

    "Considerable period of time" means the period of time during which that volume of the periodical can be purchased through normal commercial routes. Therefore, if the periodical is published monthly, for example, the publication of the next month's volume means that the former volume is already "a periodical already published for a considerable period of time".

    This means that, while the next volume is not published, each individual work incorporated in the former volume (viz. the latest one) should not be copied as a whole but just a part can be reproduced.

    The frequency of the publication of periodicals varies such as each day, week, month, season, year, etc. and therefore, one year to wait in the case of a yearly periodical may seem too long. Actually, there is an agreement between the Japan Reproduction Rights Center and the Association of University Libraries that users may make all of each individual work in a yearly periodical three months after the publication.

    The reason why "considerable period of time" is interpreted as "until the next one is published" is that when the next volume is published the former has already carried out its economic function, and therefore, copying the individual works in the former one does not seem to prejudice the economic interests of the author.

    In some libraries the latest volumes are indicated by such means as special covers and tags, so that the library users may easily know that the volume has not past “considerable period of time” and therefore, the whole part cannot be reproduced.

    There also is an opinion that in the case of the periodical the back numbers of which are continuously sold, the publication of the next volume cannot considered as "considerable period of time".




    Q6. Is it permissible for the library which does not have the book requested for copying by a user to ask another library to make (and send) a copy of the book?

    Answer

    Such an act is called "ILL" (Inter-Library Loan). The normal practice to cope with such a case used to be mutual lending of books between the libraries, however, mutual request of copying (and sending the copies each other) has become popular among libraries, and some libraries even have a specialized section for this practice.

    A report issued in 1984 by the Agency for Cultural Affairs said: "Copying services of libraries are expanding not only in the case that a library user directly requests to the library which has the book but also in the case that a library user makes such a request through another library which does not have the book..... However, Article 31 of the Copyright Law provides for the limitation to the scope of the exercise of the exclusive right of authors within the framework that such a limitation does not unreasonably prejudice the interests of authors, and therefore, the latter case cannot be interpreted as being covered by the limitation provided for in Article 31". The report also recommended that the right owners and libraries establish a guideline to cope with such a case.

    For this issue a guideline has been established by a contract between the users' side (the Library Cooperation Committee of National, Local Public and Private Universities) and the Copyright Management Association of Publishers (an ordinary corporation) as well as by a written agreement between the former and the Academic Copyright Association (an ordinary corporation). (See "Guideline for the Reproduction of Library Materials by Cooperation among University Libraries" within "Reference Materials" in the website of the National University Library Association)

    The guideline stipulates that the right owners authorize the act that a library, which received a request of reproduction from another library, copies a part of the book under the conditions provided for in Article 31 of the Copyright Law, and also directly mails, transmits by facsimile, or transmits through the Internet the copy. However, the guideline also stipulates that the library should provide the user with the copy only in the form of printing, and also, should not keep any intermediary copies created through the above procedure. In addition, libraries are to make efforts to expand the purchase of books and periodicals which are frequently requested for copying.

    Also, apart from the above agreement and guideline, the right owners' side and the users' side reached another agreement and established a new guideline in January 2006, by which the right owners authorize the act that a library makes a copy of a part of the book lent from another library and directly provides the user who requested the copying with it. Before this agreement and guideline were made, library B, which lent a book from library A, should, when a user requests library B to make a copy of that book: firstly, send back the book to library A,; secondly, ask library A to make a copy of the book and send the copy to library B; thirdly, provide the user with the copy; and fourthly ask library A to send the book back to library B again. This complicated procedure is not necessary any more. (See "Reference Materials" in the website of the National University Library Association)




    Q7. Is it permissible for a library to lend videotapes? Is there any difference between music CDs and videotapes?

    Answer

    Lending cinematographic works (those fixed in videotapes, CDs, DVDs, film, etc.) in the library is treated differently in the Copyright Law from the lending of other materials such as books and music CDs.

    Under the Japanese Copyright Law, only the author of a cinematographic work is granted an extremely strong right called the "right of distribution", which covers both the act of lending (including commercial rental and public lending) and the act of ownership transfer (without exhaustion after the first sale). The authors of other categories of works are granted two separate rights of (a) lending (including commercial rental and public lending) and (b) ownership transfer (with exhaustion at the first sale).

    The strong right of distribution (lending + ownership transfer) without exhaustion was granted only to cinematographic works so that film companies may keep the full controlling power of the circulation of all films. This right also applies to videos, which virtually did not exist when the present Copyright Law was established.

    After the right of distribution (for cinematographic works) was established in 1970, the right of lending (for all the other categories of works) was provided for in 1984, followed by the right of ownership transfer (for all the other categories of works) in 1999.

    When the right of lending, which theoretically covered both commercial rental and non-commercial public lending, for other categories of works was established in 1984, a limitation provision was inserted in the Copyright Law to make public lending permissible as an exception.


    Article 38 of Copyright Law
    (4) It shall be permissible to offer to the public a work already made public, by lending copies of the work for non-profit-making purposes and without charging any fees to borrowers of such copies.

    Libraries could continue public lending without authorization of or payment of remuneration to authors because of this limitation provision.

    In the amendment of the Copyright Law to establish a new right of lending (and also the above-mentioned limitation provision), a new limitation provision to the right of distribution (the part of lending) of cinematographic works was also introduced in terms of public lending.


    Article 38 Copyright Law
    (1) For audiovisual education establishments and other establishments not for profit-making, designated by Cabinet Order, having the purpose, among others, to offer cinematographic films and other audiovisual materials for the use by the public, it shall be permissible to distribute a cinematographic work already made public, by lending copies of the work, without charging any fees to borrowers of such copies. In this case, a person who makes such distribution shall pay a reasonable amount of compensation to the owner of the right mentioned in Article 26 (including the owner of the same right as that mentioned in Article 26 in accordance with the provision of Article 28) with respect to such a cinematographic work or a work reproduced in that cinematographic work.

    As is indicate in this provision, while the limitation provision of public lending of books (Article 38 (4)) applies to any entity which does this act, Article 38 (5) applies only to "audiovisual education establishments and other establishments not for profit-making, designated by Cabinet Order, having the purpose, among others, to offer cinematographic films and other audiovisual materials for the use by the public".

    Also, while Article 38 (4) dose not provide for any payment of compensation, Article 38 (5) makes it obligatory to pay "a reasonable amount of compensation" to the right owners (virtually the "remuneration right of public lending").

    The establishments designated by Cabinet Order include local public libraries established by prefectures and municipalities, and therefore, such libraries may lend videotapes, however, they should pay the compensation.

    At this amendment of the Copyright Law in 1984, the associations of film companies and that of libraries made efforts to develop an appropriate payment system of the compensation, and finally established the so-called "library price system". Under this system, the compensation is paid only once at the time of the purchase of the cinematographic work by a library, and the compensation is included in the price of the videotape or DVD, with a specific mark or seal on the case, from the beginning. This means that a videotape for public lending is more expensive than ordinary ones and the expensive price is called "library price".

    Such videotapes and DVDs, for which the compensation has already been paid, are supplied directly or indirectly to a lot of public libraries.

    Also, the association of video-DVD makers has been producing such seals and distributing to its member companies.

    Attention should be paid to the fact that university/college libraries are not designated by the above Cabinet Order, and therefore, they cannot lend their videotapes without authorization of the right owners. However, based on the agreement on each videotape between the right owners' side and libraries' side, the majority of videotapes in such libraries can be lent to the public. For other videotapes in university/college libraries, the authorization is needed for public lending.

    * Cabinet Order for the Implementation of the Copyright Law

    Article 2ter

    The establishments designated by Cabinet Order mentioned in paragraph (5) Article 38 of the Copyright Law are the following.

    (i) audiovisual education establishments established by the state, a prefecture or a municipality
    (ii) libraries under paragraph (1) Article 2 of the Library Law
    (iii) other facilities established by the government, a local government or an ordinary corporation, etc., which are designated by the Commissioner of the Agency for Cultural Affairs which collect, preserves and offers to the public audiovisual materials



    Q8. Is it permissible for a library to lend a book containing a CD-ROM or a DVD?

    Answer

    The possibility of public lending without authorization of CD-ROMs and DVD depends on the contents fixed within them because they are just reproduction media and they themselves are not works. Also, conditions for use indicated by the right owners are also to be examined and respected. As explained in Q7, if the content is categorized as a cinematographic work, the special rule for cinematographic works, which is described in Q7, applies.

    For example, a CD-ROM attached to a periodical has an indication, which says, "The contents in this CD-ROM, data and computer programs, are all protected by the Copyright Law." Also, the note attached indicates that the CD-ROM incorporates various computer programs such as shareware (to be used without authorization but with payment) and freeware (to be used freely). Also, if a cinematographic work is included and it is not free for use, the rule described in Q7 applies.

    Under the Japanese Copyright Law, the right of distribution, which does not exhaust, is granted to cinematographic works. However, the Supreme Court made a judgment in April 2002 that this right does not apply to the copies distributed in the market such as videotapes.




    Q9. Is it permissible for a city library to provide book reading services for children and book recording/lending services for disabled people such as the blind?

    Answer

    As to book reading service, such activities are often organized by libraries as book reading (reciting) gatherings for children and person-to-person book reading service for disabled people such as the blind. The act of reading a literary work, such as a published book, to the public (in front of more than a certain number of people) in such activities as book reading gatherings and book reading services is, in principle, covered by the "right of recitation". Recitation here is defined as "the oral communication by means of reading or otherwise", and therefore, such an act is included in recitation.

    However, the exceptional rule of Article 38 of the Copyright Law applies to recitation. Namely, it shall be permissible to publicly recite a work under the conditions that it is done (a) for non-profit-making purposes and (b) without charging any fees, (c) provided that the reciter concerned is not paid any remuneration for such recitation. Therefore, book reading activities and services can be done in a library by librarians or volunteers without authorization of the author of the book, if they comply with the above three conditions.

    The guideline entitled "Use of Works by Book Reading Organizations", which was published by the Council of Four Children's Book Associations participated by such associations as the Group of Children's Book Publishers of the Japan Publishers Association (a public-profit corporation) :
    "The use of works by book reading to the public can be done without authorization of the author when it is done (1) for non-profit purposes, (2) without collecting any admission fee from the listeners and (3) without paying any compensation to the reader/performer, however, the payment of expenses for transportation to the reader/performer is not included in the above 'compensation', and the collection of nominal money from the listeners for the expenses for lunch, materials, etc. is not included in the above 'admission fees'". (See "Guideline" in the website of Japan Publishers Association (a public-profit corporation))

    As to book recording/lending services, the act of recording a book carried out by such facilities as braille libraries was permissible without authorization of the right owners based on an exceptional provision of Article 37 of the Copyright Law, however, an expansion of the scope of this exception was expected, which was finally realized by an amendment of the Copyright Law in 2009.

    Firstly, the user of the recorded book used to be limited to "the visually disabled", which has been expanded by the above-mentioned amendment to "the visually disabled and those who have any disability in recognizing visual expressions". This means that the people who have such disabilities as development disorders and color blindness are newly covered by the amendment. For further details please see "Guideline for Reproduction and other Use of Copyrighted Works in the Service for the Disabled of the Library based on Paragraph 3, Article 37 of the Copyright Law" (Website of Japan Librarians' Association (a public-profit organization)).

    Secondly, the range of the facilities which can make such recordings for lending has been expanded to include the libraries of higher education institutions and local public libraries as well as designated non-profit organizations. This means that the librarians and volunteers, who had difficulties to obtain the authorization of relevant right owners, no more should make such efforts.

    Thirdly, the range of the possible use (without authorization) of the work used to be limited to recording and lending, however, it has been expanded by the amendment to any kind of reproduction and transmission to the public. This means that, in addition to recording, it is now permissible without authorization to carry out such acts as changing a pre-existing picture book into another one made of cloth, a three-dimensional picture book or another one with different colors, taking into account the nature and kind of the disability of the user.

    However, this exception does not apply to the cases that a book has been commercially recorded (e.g. by a famous actor and/or voice artist), published and sold in the market, because in such cases the reproduction and other uses without authorization will damage the interests of the author and publisher.

    Apart form this exception for the visually disabled, another amendment of the Copyright Law was made in terms of Article 37bis for the aurally disabled, by which such acts as reproduction for subtitles and its public transmission as well as the lending of cinematographic works with such subtitles can be done without authorization by such facilities as local public libraries.



    Q10. How should a library cope with users who take pictures of book pages by digital camera and mobile phone?

    Answer

    As explained in Q3, Article 30 of the Copyright Law provides for an exception of "reproduction for private use", and therefore, it is permissible to reproduce works without authorization of the author under the conditions of this article.

    Also as explained in Q3, it is not covered by the above exception or by the exception for libraries stipulated in Article 31 that a library sets up a copying machine within it to let users make copies.

    The reproduction by digital camera or mobile phone by individual library users, e.g. taking a picture of just one page of a cuisine book or newspaper, which seems to be of a minor scale without damaging the economic benefits of the author, is covered by the exception of "reproduction for private use".

    However, the library may consider that such an act should not be done within it, not based on copyright but on the function of the library, e.g. such considerations as letting users copy various pages itself is no good and/or it may disturb other users.

    The library therefore may establish a local rule based on its right to manage the whole facility, rather than copyright, that prohibits such an act of reproduction.




    Q11. Does it require the authorization of author to reproduce cover pages of new books in "Library News" to introduce them and also to transmit it through the website?

    Answer

    A number of cover pages of books contain works created by painters, photographers, illustrators, designers and so on. These works are also protected by copyright and therefore, it is advisable to contact relevant authors for authorization to make use of them in the "Library News". However, the copyright of such works may have been transferred to the publisher.

    Such an act of reproduction does not seem to damage the economic benefits of the authors and the library may think that it is rather helping the authors to sell the book. However, it should be noted that some authors are extremely sensitive to any unauthorized use of their works even if they are used by good will.

    However, some people argue these days that the Copyright Law should be amended so that the use of cover pages in library information materials be done without authorization.

    For example, the president of a publishing-related company says, "Some 80,000 new books are published in Japan each year, but only a limited number of them are introduced in journals and book guides, and also, the cover pages are used in still more limited cases. Such a use of cover pages is good for the economic benefits of relevant authors, publishers and readers, and therefore, the Copyright Law should be amended to expand the exception for this purpose." ("Copyright" No.559 published by the Copyright Research & Information Center)

    Also, "Use of Works by Book Reading Organizations" published by the Council of Four Children's Book Associations, which was mentioned in Q9, proposes an interpretation as follows in terms of the use of cover pages.
    "Use of cover pages in book list, library information, book review, etc., which is just to show a commodity, seems to be permissible, however, similar use in a website requires authorization unless it corresponds to citation under the Copyright Law."

    According to this interpretation, the case of "Library News" is permissible but "Website" is not.

    It also should be noted that in the case of citation under Article 32 of the Copyright Law, works should be used without authorization.




    Q12. Is it permissible for a university library to transmit research outcomes of the professors by establishing an "Institutional Repository"?

    Answer

    "Institutional Repository" usually means a virtual/electronic archive system on the Internet, by which the research outcomes of the institution's researchers, students and personnel are collected, stored and provided through the Internet.

    In terms of copyright, such a system involves the acts of reproduction and public transmission, and therefore, the university library should obtain the authorization of the relevant authors.

    It seems easy for the university library to obtain the authorization from the researchers who belong to the university, however, if the copyright is transferred to an academic society or a publisher, it may not be so easy. Also, it may be difficult to find the author who is already gone from the university to ask for the authorization to use his work which had been created long time ago.

    When the copyright is transferred to an academic society or a publisher, the library should obtain the authorization from these "copyright owners" rather than the "author".

    In the case of research outcomes published in the university journal, establishing an in-house rule that the copyright is automatically transferred to the university will make it easier to use them also in the repository.

    However, even if such a rule is established, the university library which would like to use research outcomes in the past in the repository should identify all the authors as well as obtain their authorization.




    Q13. What was the content of the recent amendment of the Copyright Law for the digitization and transmission of materials by the National Parliamentary Library?

    Answer

    The National Parliamentary Library is the only national library in Japan, and it enjoys a system called "legal deposit", which is provided for in the National Parliamentary Library Law, with a view to facilitating its activities to widely collect, preserve and provide books and other materials published in Japan.

    The number of books yearly published in Japan reaches almost 80,000 and the National Parliamentary Library has the privilege to have all of them for the succession to the future. The number of the copies to be deposited is one or two from ordinary publishers and two to thirty from governmental organizations and higher education institutions.

    By the amendment of the Copyright Law in 2009 it became possible for the National Parliamentary Library to digitally reproduce such deposited books without authorization of the authors in order to keep the original books in good conditions for ever. (Article 31, Paragraph 2)

    Also, by another amendment of the Copyright Law in 2012 it became possible for the National Parliamentary Library to transmit its digital materials to certain libraries designated by the Copyright Law by The National Parliament Library in terms of its library materials which are rarely available through normal trade channel because the materials are out of print or for other similar reasons.


    Article 31 (Reproduction and other uses in Libraries)

    2 In addition to the cases of the items provided for in the preceding paragraph, the National Parliamentary Library may reproduce its library materials in memories, to the extent deemed necessary, for the production of electronic or magnetic records ("electronic or magnetic records" mean the records which are produced by electronic or magnetic means or by other means not perceivable by human perception and are processed by a computer; the same shall apply in Paragraph 4, Article 33bis) to be used instead of the originals by the public, in order to avoid the loss, damage or stain of the originals of its materials which may be cause by their use by the public, or to do interactive transmission (including “making transmittable”) of the materials which are rarely available through normal trade channel because the materials are out of print or for other similar reasons based on the provision of the next paragraph.

    3 The National Parliamentary Library may do interactive transmission (including “making transmittable”) of the materials, which are rarely available through normal trade channel because the materials are out of print or for other similar reasons, by making use of the reproductions of such materials produced based on the provision of the preceding paragraph, for the purpose of providing such materials to the public in certain libraries designated by the Copyright Law. In this case, in such libraries, it shall be permissible to reproduce the said transmitted materials, within the scope of their non-profit-making activities, at the request of a library user and for the purpose of his own investigation or research, and to distribute a single copy of a part of the transmitted work.



    Item 2, Paragraph 1 of the same Article provides for another exception, by which a library may reproduce its library materials without authorization for the purpose of their preservation, however, a prevailing interpretation of this provision is that the original should be abandoned after the reproduction (e.g. digital recording and photography). The above-mentioned amendment “Paragraph 2” was newly established just for the National Parliamentary Library, in which the preservation should be done forever and heavily damaged or stained materials cannot contribute to its basic purpose. By this new provision, the National Parliamentary Library may digitally reproduce its materials just after the deposit when the originals still keep good condition while preserving the originals forever.

    The major purpose of this new provision is to make it possible for the National Parliamentary Library to preserve the original books, keeping the initial good condition for the future, and therefore, the use (reading, copying, etc.) of the materials by the general public should be done, in principle, by the recorded digital copies. The originals seem to be used only in such cases as the lending to another library in which the original is necessary by all means.

    It should be noted that the limitation clause in terms of transmission to the public provided for in Paragraph 3 applies only to the libraries stipulated in Paragraph 1 of Article 31. In more concrete terms, they are such libraries as public libraries and university/college libraries. Therefore, libraries in elementary and secondary schools are out of the range of the exception.

    Also, attention should be paid to the fact that not all library materials digitized in the National Parliamentary Library can be transmitted without authorization, but only the materials which are rarely available through normal trade channel because the materials are out of print or for other similar reasons can be transmitted.

    According to the Website of the National Parliamentary Library (“For Users” → “Digitalized Materials Transmission Service for Libraries”) this service was started on January 21st, 2014 and some 1,310,000 materials are ready to be transmitted.

    They include some 500,000 materials among those accepted up to 1968, some 20,000 classic materials of Japan (Edo period) and China, some 670,000 periodicals issued up to 2000, and some 120,000 doctoral theses donated between 1991 and 2000

    The libraries which received the materials by the transmission from the National Parliamentary Library can make use of such materials by both showing them to the library users and reproducing them. As to the former, plural libraries can to it of the same material at the same time. Also, as to the latter, Paragraph 1 of Article 31 of the Copyright Law applies, and therefore, the library can do its reproduction service by “distributing a single copy of a part of the work.”


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