Copyright law of Japan

Japanese copyright law protects all works "in which thoughts or sentiments are expressed in a creative way, and which falls within the literary, scientific, artistic or musical domain." The laws automatically provide the following rights, without the need for formal declaration or registration.

• Divulgence: The author can choose when and how a work will be made available to the public.
• Authorship: The author can choose how their authorship is represented in the work (e.g., under pseudonym or anonymity).
• Integrity: The author can control the modification of a work.

"Moral rights" (人格権 jinkaku-ken) are non-transferable; they remain with the author until they expire. Although moral rights themselves cannot be waived, the exercise of moral rights is waived by contract, when, for example, an employee or contractor creates a derivative work of their employer's or principal's product. In such a situation, the moral rights would technically remain with the creator, but the creator would be potentially liable for breach of contract if they attempt to exercise those rights.

• Reproduction: The author can control the reproduction of a work, including photography, recording, and downloading.
• Communication: The author can control how a work is to be transmitted, communicated, broadcast, performed, exhibited, etc., including how copies of the work are to be distributed.
• Adaptation: The author can control the adaptation of a work through translation, dramatization, cinematization, and the creation of derivative works in general.

Unlike moral rights, economic rights can be freely transferred or relinquished. If the author transfers their economic rights to another, the holder of the economic rights becomes the "copyright holder", but the author retains authorship.

Performers generally have two non-transferable moral rights:

• Authorship, or control over how they are named in connection with the work; and
• Integrity, or control over the alteration of a performance, in a manner that would prejudice the performer's reputation.

Live performers have the transferable economic rights of fixation (control over recording), making available (control over publication in interactive media such as the internet), and diffusion (control over diffusion by wire or broadcast).

Fixed aural performers have the transferable economic rights of fixation and making available, as well as transfer of ownership, and rental. They can also demand remuneration if their work is broadcast or diffused by wire.

Phonogram producers have the same economic rights as fixed aural performers, but do not have any moral rights.

Broadcasters and wire diffusers have the transferable economic rights of fixation, reproduction, making available, and retransmission. Television broadcasters also have a right to control photography of their broadcasts.

Artistic works permanently installed in public places can be reproduced freely by photograph, film, etc. However, except for architecture, the author's permission must be obtained before publicly exhibiting their work, and commercial reproductions of artistic works are not permitted without the author's permission.

Teachers at non-profit educational institutions are permitted to reproduce copyrighted works for the purpose of teaching, as long as such reproduction does not infringe on the interests of the author. For example, a teacher may duplicate a television program or audio recording, but may not distribute copies of educational software without express permission. Works can also be reproduced in examinations at educational institutions, but the author must be remunerated if the exam is performed for-profit.

Unless a newspaper or wire service article specifically states that it cannot be reproduced, free reproduction is permitted. Normally, copyrighted materials can also be reproduced to the extent necessary for reporting of current events (this extends to printed matter, film, and photographs).

Works can be performed or exhibited freely if the performer is not remunerated, and the audience is not charged an admission fee.

Political speeches and government proceedings can be freely reproduced, except when the intent of the reproduction is to create an anthology of the author's works.

Braille and audio versions of printed materials may be reproduced for the purpose of lending, but not for commercial use.

Works may be quoted freely, as long as the quotation does not exceed what is justified for its purpose.

Software can be reproduced for personal use. If one of the above exceptions to reproduce a work publicly is used, the person reproducing the work must cite its source.

In 2009, Japanese copyright law was updated to allow the following digitally focused limitations and exceptions.

Copying on servers of in-copyright works in order to provide search engine–type services.

The use of an orphan work, an in-copyright work whose owner cannot be found, on the internet, subject to approval from the Japanese Ministry of Culture.

Reflecting the popularity of online auction websites like eBay, the use of an image of an in-copyright work, on the internet when advertising something for sale.

The analysis of in-copyright works using computers (Art.47 septies) in order to extract statistics and information, and come up with new ideas. Japan was the first country in the world to introduce an exception for text mining as well as data mining in 2009.

Caching, storing, copying etc.

In 1992, the "Compensation System for Digital Private Recording" was introduced. According to this system, those who make digital sound or visual recordings for personal use should pay compensation to the copyright owners. This compensation is added in advance to the prices of specified digital recording equipment (DAT, DCC, MD, CD-R, CD-RW), and specified recording media (DVCR, D-VHS, MVDISC, DVD-RW, DVD-RAM) (Japan Copyright Office 2001, 17; ibid. 24).

The compensation is collected and distributed by SARAH (Society for the Administration of Remuneration for Audio Home Recording) and SARVH (Society for the Administration of Remuneration for Video Home Recording). The users of this equipment and media have to pay a fee, or "compensation", so that they can use the described materials for copying the copyright-protected works. The public domain is not directly threatened, but in an indirect way, it becomes more difficult (expensive) to reproduce works for personal use.

The only way to get these downloadable audio files is by creating a sort of user account on a provider's website, and agreeing with a click-wrap contract that allows a user to download a certain number of audio files for a fixed payment. This kind of system is in fact a kind of trusted system, although we may not be aware of it.

Mamoru Kato, a JASRAC executive, said during a press conference after having set new fees for downloadable audio (in cooperation with the Network Music Rights Conference), that "the(se) new agreements will help enlighten Internet users, many of whom believe music can freely be copied from the Net. We have to teach them that you should not use other people's assets for free, by opening up a legal window for them to use" (The Japan Times Online, 18 August 2000). In other words, the clever user who tries to free-ride on the original genius of the creator of this or that audio file has to be educated, and forced to participate in a trusted system in order to obtain the desired audio files. No one has so far mentioned about either fair use or the reach of the public domain.

The above examples show that if trusted systems (and look-alikes) intend to play an important role in the future without intruding on anonymity, etc., one will have to incorporate these values as gaps in the architecture of these systems. It is, however, doubtful whether this will happen.

In 1997, the Japanese Copyright Law was updated to expand the coverage of the author's "right of communication to the public" (established in 1986 under the name of Rights of Broadcasting and Wire Transmission) to the stage of making it transmittable. The objects of the right of communication to the public are the activities of connecting a server to a network, and the activities of transmission (Fujiwara 1999, 98).

The Copyright Law defines the concepts, "public transmission" (Copyright Law, Article 2, paragraph 1 (7-2)), and "interactive transmission" (Copyright Law, Article 2, paragraph 1 (9-4)):

• "Public transmission" means "the transmission of radio communication or wire-telecommunication intended for direct reception by the public". In order to deal with the new context of the Internet, the (already existing) concept of interactive transmission (websites, video-on-demand, etc.) made a theoretical move, and is now considered as residing under public transmission (besides wire diffusion and broadcasting) (Japan Copyright Office 2001, 30).
• Interactive transmission stands for "the public transmission made automatically in response to a request from the public" (read: in response to a click with the mouse on a hyperlink).

Besides these two definitions, Article 23 (1) of the Copyright Law provides that the "author shall have the exclusive right to make the public transmission of his or her work (including the making transmittable of his or her work in the case of the interactive transmission)". This can be considered an expansion of the right of public transmission of authors to the preceding stage of making transmittable, available (Fujiwara 1999, 98-99; Japan Copyright Office 2001, 31), and even of a right of making transmittable that goes further than the WIPO Copyright Treaty (Ficsor 2002, 506).

Apart from this, and in order to comply with the WIPO Performances and Phonograms Treaty, a right of making transmittable was also granted to performers and phonogram producers. The scope here is especially to regulate the internet broadcasting of live performances (Fujiwara 1999, 98; Japan Copyright Office 2001, 31).

At first sight, one should say that the law was adapted to the new possibilities, the Internet provides—uploading content to a server, and accessing context via hyperlinks. Indeed, as the difference between simultaneous and non-simultaneous receptions fades (The Japanese Multimedia Report (Ficsor 2002, 198)), it seems to make sense to expand the right of public transmission of authors also to the stage of making transmittable (i.e., "uploading of content to a server that is accessible by the public"). But on the other hand, when we look at it from the viewpoint of the public domain, the wider reach of the concept of communication to the public means a big limitation of the reach of this public domain.

This is not a discourse against "copyright protection". Indeed, in a lot of cases, copyright protection seems to work as a system, and creates an incentive to produce. We only should be aware that the current transformations in the legislation concerning intellectual property rights—in Japan and in other countries—is moving very fast, and do not seem to take into account all facets of the story, nor remember the very basic goal of copyright, which is "to contribute to the development of culture". While copyright protection is an urgent task, excessive protection that allows for no copying "may damage the functioning of society that thrives on impartiality and imitation" (The Japan Times Online, 21 February 2002).

In November 2000, the "Copyright Management Business Law" (著作権等管理事業法 Chosakuken-tou kanri jigyou hou) was enacted. Its main purpose is to facilitate the establishment of new copyright management businesses, in order to "respond to the development of digital technologies and communication networks" (Japan Copyright Office 2001, 27). In general, we can say that this law will facilitate the rise of copyright management businesses, and possibly create a further limitation to the reach of the public domain.

In its book, "Copyright System in Japan", the title of this section is to "secure the effectiveness of rights by utilizing new technologies" (Japan Copyright Office 2001, 32). This shows clearly that the Japanese government considers software to be a tool for enforcing copyright legislation. Not mentioned, however, is the possible negative side-effects concerning fair use (limitation on rights), or the reach of the public domain.

Under the section (in the same book) pertaining to the "(r)egulation of the circumvention of technological measures such as copy protection, etc.", it is stated that "transfer to the public (of) the ownership of, and manufacture, etc. of, the devices to circumvent technological measures (e.g., copy protection), which prevent copying of videogram (sic) or music CD without authorization, are regulated by the (sic) criminal penalty" (Japan Copyright Office 2001, 32). It is quite clear that with this regulation, it becomes impossible to circumvent the copyright-protection of intellectual property in the context of fair use. This means that when a CD, etc. is copyright-protected, there is not only technically no space for fair use, but also from the legislative side, there is no support for copying in the context of fair use.

The "regulation of the alteration etc. of the rights management information" section strengthens the first regulation by saying that it is forbidden to remove rights management information attached to the work. However, it is to be said that this provision, and such, does not seem to limit immediately the reach of the public domain. Mentioning the source, etc. of the quoted material is generally considered as appropriate.

As stated by the Japan Copyright Office, the "right of transfer of ownership" was established in 1999, in order to enrich the rights of authors. This means that authors, performers and phonogram producers can exercise their right concerning the transfer of the ownership of the original, or copies of the work, at the first legal transfer. After this, the right will be extinguished (Japan Copyright Office 2001, 32). This new ruling can be considered as a contribution to the recent strengthening of author-centered regimes.

Another aspect of the 1999 amendment to the Japanese Copyright Law was the so called extension of the "right of presentation". Previously, this right was only granted to cinematographic work (Japan Copyright Office 2001, 32). After the amendment, it was extended to all kinds of works, reaffirming at the same time, exactly as in the right of transfer of ownership, the importance of the notion of the author.