I. What Is "Copyright"?

Table of contents

I. What Is "Copyright"?
-- Copyright, A Rule For Everybody, Needs More Public Awareness & Respect --

The term, Intellectual Property Rights (IPR) is often used these days in a number of occasions. This concept is classified into the following three categories. One of them is "Industrial Property Rights" such as patent, design and trademark. Another one is "Copyright" for cultural creations the legal protection of which is provided for in the Copyright Law. The cultural creations protected by this system are called "works of authorship": such creative expressions of thoughts or sentiments as literary, scientific, artistic and musical one, and the creator is called "author".

Industrial property rights are granted only upon such "formalities" as registration. On the other hand, copyright is granted automatically without any formality (non-formality rule) at the moment of the creation up to the end of a period of fifty years following the death of the author. The protection and people's awareness of copyright are said to reflect the degree of cultural development of the country, and therefore, copyright systems should be understood by a wide range of people.




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II. What Is "Work"?
-- A drawing of a little kid is also a work with full protection.--

The following table shows the categories and examples of works of authorship. The granting of copyright has nothing to do with the artistic value or fineness to be found in them. All creative expressions of original thoughts or sentiments of the creator which are not copies of others are protected including, such things as a drawing of a three-year-old kid and a writing of an elementary school pupil.

Some countries with a lower level of copyright protection require "fixation" in a tangible medium to be protected as a work, however, under the Japanese Copyright Law it is not required, and therefore, "live" works are also protected automatically, which is extremely important in the broadband age.


Categories and examples of works of authorship
Literary Works: speech, treatise, essay, novel, scenario, poem, lecture, etc.
Musical Works: musical piece, lyric with music, etc.
Choreographic Works & Pantomimes: choreography of dance, ballet, pantomime, etc.
Artistic Works: painting, engraving, sculpture, cartoon, calligraphy, stage setting, etc. including industrial arts
Architectural Works: architecture (Blueprint belongs to figurative works.)
Map and Figurative Works: plan, chart, model, etc. of scientific nature and map
Cinematographic Work: movie, fixed TV program, video, etc.
Photographic Work: photo, gravure, etc.
Program Works: computer program


Other categories of works made/developed from original works
Derivative Work: a work created by translating, musically arranging, cinematizing, transforming, or otherwise adapting a pre-existing work
Compilation: collection of works and/or data such as encyclopedia, dictionary, newspaper, journal and anthology
Database: collection of works and/or data the information in which can be searched for and read with the aid of a computer


Author's right is not granted with respect to the following works:
(1) the Constitution and other laws and regulations
(2) notifications, instructions, circular notices and the like issued by organs of the State or local public entities
(3) judgments, decisions, orders and decrees of law courts as well as rulings and decisions made by administrative organs in proceedings similar to judicial ones
(4) translations and compilations, of those materials mentioned in the preceding three items, made by organs of the State or local public entities


Q1. Is an "idea" considered as a work to be protected?
A1. No. A work is an "expression" which is perceptible to people. Therefore, an idea itself is not a work to be protected. However, if the idea is written (expressed) in such materials as a book, the expression is a work.


Q2. Are such things as "slogan", "watchword" and "title" considered as works to be protected?
A2. It depends. Usually, they are not protected as works, however, some slogans and watchwords (e.g. extremely long ones) may be considered as works. This issue should not be discussed in terms of how they are called but whether they are actually creative expressions of thoughts or sentiments.


Q3. Is a simple photo of a pre-existing painting protected as an independent work?
A3. No. Taking a photo of a pre-existing painting is not creation of a new work to be protected independently, because, the act of simply reproducing a pre-existing thing with a machine has no creativity. As such photo is a copy of the original painting, exploitation of the photo calls for the authorization of the painter rather than the photographer. However, photos of pre-existing sculptures are, in many cases, works to be protected as creativity is often found in the act of expressing the three-dimensional sculpture on a two-dimensional photo.


Q4. Is a stenographic record of a folk tale or a legend considered as a work to be protected?
A4. No. Stenographic records of folk tales or legends with no or little change are not works of the stenographer as they have no creativity. However, if a new story is written with new episodes and expressions based on the plot of the original folk tale or legend, it can be considered as a new work to be protected as it has creativity. Such judgment, which is extremely difficult in some cases, should be made for each individual case.


Q5. What is "joint-work"?
A5. "Joint-work" means a work created by two or more people the contribution of each of them in which cannot be separately exploited. Therefore, copyright of such a work should be exercised collectively by all authors concerned.


Q6. Are computer programs and databases protected as works of authorship?
A6. Yes. The protection of computer programs was made clear by an amendment of the Copyright Law in 1985. Computer programs are protected as copyrighted works of authorship in most countries in the world. As to databases, the protection was also made clear in another amendment of the Copyright Law in 1986. In the Japanese Copyright Law, computer-readable collection is called "database" and non-computer-readable collection is called "compilation".

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III. What Rights Are Granted to Authors?
-- "Moral Rights" and "Economic Rights". --

Author's right is divided into two categories: "moral rights" to protect author's moral/emotional interests and "economic rights" to protect author's economic interests.

Moral rights are exclusively personal to the author, and therefore, can never be transferred to other people including heirs (the "inalienability" of moral rights). As moral rights are of personal nature and untransferable, they are exhausted at the death of the author, however, moral interests of the late author are protected to some extent by the Copyright Law even after his/her death.



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On the other hand, economic rights can be transferred by sale, assignment, succession, etc. partly or totally. Therefore, if an economic right is assigned to someone, the assignee will become the "copyright owner" although the original creator continues to be the "author" with moral rights.

Who is the author?
A work created by an individual The author is the creator.
(In the case of a joint-work all creators share the authorship of the work.)
A work created by an employee The author is the employer under the following conditions:
(a)The work was created by the initiative of the employer.
(b)The work was created by the employee as his/her duty.
(c)The work is to be open to the public under the name of the employer.
(d)There is no contradictory provision in the contract of employment.

Right of Authors

A. Moral Rights
Right for divulgence: The right to control the act of making an unopened work open to the public in terms of whether is should be made open to the public or not, when to be opened, how to be opened, etc.
Right for authorship: The right to control the act of indicating the name of the author in terms of whether any name should be indicated, whether the name should be the true name or pseudonym, etc.
Right for integrity: The right to control the act of distorting, mutilating or modifying a work (whether or not such an act damages the authors honor or prestige).


B. Economic rights
(a) Reproduction
Right of reproduction: The right to control the act of making copies of a work by any such means as printing, photography, reprography, sound recording, visual recording, downloading, etc.

(b) Communication to the public without copies
Right of public transmission: The right to control the act of publicly transmitting a work by any means such as the Internet, TV/radio, cable diffusion, telefax, etc. (including the act of both "making transmittable" in a server with or without reproduction within, and "transmission" from the server to a member of the public upon access).
Right of public communication by receiver: The right to control the act of publicly communicating a transmitted work by means of a receiving apparatus (e.g. TV set).
Right of public display: The right to control the act of publicly showing a work (moving or non-moving image, texts, etc.) by means of an apparatus.
Right of public performance: The right to control the act of publicly performing a work.
Right of public recitation: The right to control the act of publicly literary a work.
Right of public exhibition: The right to control the act of publicly exhibiting the original of an artistic work or an unpublished photographic work.

(c) Communication to the public with copies
Right of transfer of ownership: The right to control the act of publicly transferring ownership of copies of a work. (with international exhaustion)
Right of public rental: The right to control the act of publicly renting copies of a work.
Right of distribution: The right to control the act of distributing (transferring ownership or renting) a cinematographic work. (without exhaustion)
Right of public Lending: The remuneration right of public lending of cinematographic work.

(d) Rights Related to Derivative work
Right of adaptation: The right to control the act of adapting a work by such means as translation, musical arrangement, transformation, dramatization, cinematization, adaptation, etc.
Right of exploitation of derivative works: The right to control all the above acts in terms of derivative works adapted from the original work of the author.


Q1. Is any formality needed to be granted author's right?
A1. No. Author's right is granted automatically at the moment of the creation of a work. Therefore, no formality is required to have relevant rights. This internationally shared is called "non-formality rule".


Q2. Are there any exceptional cases in which unauthorized modification of a work is permissible?
A2. Yes. Any modification or a work, whether of not it damages the author's honor or prestige, calls for the authorization of the author, who has the right of integrity as one of the moral rights, in principle. However, there are some exceptional cases, and in such cases as the following the author's authorization is not needed: change in writing manners (e.g. limiting the use of Chinese characters) for school textbooks; repair or renovation of an architectural work; "version-up" of a computer program. These are the cases in which such modifications are indispensable in the light of the nature of the work as well as the purposes/ways of usage.


Q3. Does so-called "manuscript purchasing" mean assignment of copyright?
A3. No. Unless copyright is clearly transferred by a contract, it always remains on the author's side. So-called "manuscript purchasing", which simply means the relevant payment is made only once (rather than many times based on the number of copies produced/sold), does not constitute any assignment of author's right. Also, different business sectors seem to have different interpretations to the term "purchase", and it may cause problems in the future especially in the case of oral contract. Therefore, a clear written contract should be prepared when the transfer of copyright is intended.


Q4. Is it necessary to have the authorization of the author of the original work in order to exploit its translation?
A4. Yes. As for a derivative work such as those translated, dramatized, cinematized, etc. the author of the original work, in principle, has the same set of rights as the author of the derivative work. Therefore, it is necessary to have the authorization of the author of both the original and the translation to publish a translated work.


Q5. Is it permissible for a schoolteacher to record and edit TV programs to make a material for his/her own teaching?
A5. Yes. A teacher actually in charge of teaching at non-profit-making school may make copies of works already open to the public, performances, phonograms and wire/wireless broadcasting programs for the purpose of use in his/her own teaching, However, due attention should be paid to the moral rights of the such as the right of integrity.


Q6. Who has the author's right of a joint-work?
A6. Author's right of a joint-work is owned jointly by all the co-authors concerned. The rights should be exercised, in principle, based on unanimous agreements of all of them. In the case of a cinematographic work alone, if the authors have undertaken to participate in the production by a film maker, the economic rights are automatically transferred to the film maker.


Q7. Is it necessary to have the authorization of the author to upload his/her work in a Homepage?
A7. Yes. The act of "uploading" a work in a server constitutes the act of "making transmittable", by which the work may be transmitted to members of the public upon access in the future. This act can be done with or without "reproduction" within the server; uploading in a homepage is a typical example of the former, and so-called "web-cast" is that of the latter. The right of public transmission covers both the act of "making transmittable" in a server (whether or not actual transmission from the server has already taken place) and that of "public transmission" from a server to members of the public upon access. Therefore, the uploading a work in a homepage always calls for the authorization of the author.

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IV. How Long Does Author's Right Continue?
-- In Principle, 50 Years Time after the Author's Death. --

As has been mentioned, "moral rights" of author are exhausted at his/her death, however, moral interests of the late author are protected to some extent by the Copyright Law even after his/her death.

On the other hand, "economic rights" of author continue to subsist from the time of the work's creation up to the end of a period of fifty years following the death of the author. Some exceptions are as follows:

Type of Work Term of Protection
Works with a true name or a widely known pen name: 50 years after the death
Works with a pen name or no name: 50 years after the making public (50 years after the death, if 50 years have clearly passed after the death of the author)
Works with the name of a body corporate: 50 years after the making public (50 years after the creation, if not made public for 50 years)
Cinematographic works: 70 years after the making public (70 years after the creation, if not made public for 70)

(note) The term is calculated from the beginning of the year following the date when such event as death occurred.
If there is no heir after the death of the author, his/her copyright is to expire.


Q1. How long will works of late Osamu Tezuka (the author of "Astro Boy") protected?
A1. Osamu Tezuka passed away in 1989. Osamu Tezuka was actually a pen name, however, as it was widely known, his works will be protected up to fifty years after his death. In more concrete terms, the term should be calculated, starting from January 1, 1990, and copyright in his works will expire at the end of December 31, 2039.


Q2. What is "a work with the name of a body corporate"?
A2. It means a work which has been made public under the name of a company, association, organization, foundation, etc. whether the author is a person or a juridical person. The term of protection of such a work is, in principle, 50 years after the disclosure.


Q3. How is the term of protection calculated in the case of joint-works?
A3. The term of protection of a joint-work is to be calculated based on the death of the last surviving co-author.


Q4. Are there any countries in which the basic term of protection is not fifty years?
A4. Yes. The following are some examples of such countries:
Mexico: 100 years
Colombia: 80 years
Germany, France, Italy, UK, Argentine, Brazil, Russian and USA: 70 years
India: 60 years
Iran: 30 years

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V. What Are Neighboring Rights?
--Rights Granted to Performers, etc.--

Neighboring rights are granted to those who play important roles in "communication to the public" of works and other information, but do not create works. Under the Japanese Copyright Law, the following four categories of right owners are granted neighboring rights: (a) performers, (b) phonogram producers, (c) broadcasters, and (d) wire diffusers.

(Key Words)
Performer:
actors/actresses, dancers, singers, musical players, conductors, etc. including those who perform something that are not works such as acrobats, jugglers, etc.
Phonogram producer:
those who first recorded sounds in something.
Broadcaster:
those who engage in (wireless) broadcasting as business.
Wire diffuser:
those who engage in wire diffusion as business.


(A) Rights of Performers

Moral Rights
Right of authorship: The right to control the act of indicating the name of the performer.
Right of integrity: The right to control the act of distorting, mutilating or modifying performances in a manner prejudicial to the performer's reputation.

Economic Rights

Live Performance
Right of fixation: The right to control the act of fixing live performances.
Right of making transmittable: The right to control the act of making live performances transmittable in an interactive transmission server (for Internet broadcasting, web-casting, etc.).
Right of broadcasting and wire diffusion: The right to control the act of broadcasting and diffusing by wire live performances.


Fixed Aural Performances
Right of reproduction: The right to control the act of making copies of fixed aural performances.
Right of making transmittable: The right to control the act of making fixed aural performances transmittable in an interactive transmission server.
Right of transfer of ownership: The right to control the act of publicly transferring ownership of fixed aural performances (with international exhaustion).
Right of rental: The right to control the act of renting fixed aural performances (exclusive right for the first one year; and remuneration right for the remaining 49 years).
Remuneration right for broadcasting and wire diffusion: The right to receive fees from broadcasters and wire diffusers which broadcasted or diffused by wire fixed aural performances.


(B) Rights of Phonogram Producers

Right of reproduction: The right to control the act of making copies of phonograms
Right of making transmittable: The right to control the act of making phonograms transmittable in an interactive transmission server.
Right of transfer of ownership: The right to control the act of publicly transferring ownership of copies of phonograms (with international exhaustion).
Right of rental: The right to control the act of renting phonograms (exclusive right for the first one year; and remuneration right for the remaining 49 years).
Remuneration right for broadcasting and wire diffusion: The right to receive fees from broadcasters and wire diffusers which broadcasted or diffused by wire fixed commercial phonograms.


(C) Rights of Broadcasters

Right of reproduction: The right to control the act of reproduction of trnsmitted programs (including fixation, and photographing TV programs).
Right of making transmittable: The right to control the act of making transmitted programs transmittable in an interactive transmission server without fixation (by e.g.web-casting).
Right of retransmission: The right to control the act of rebroadcasting or diffusing by wire transmitted programs.
Right of communication to the public by enlarging devices: The right to control the act of showing transmitted TV programs to the public by enlarging receiving devices.


(D) Rights of Wire Diffusers

Right of reproduction: The right to control the act of reproduction of trnsmitted programs (including fixation, and photographing TV programs).
Right of making transmittable: The right to control the act of making transmitted programs transmittable in an interactive transmission server without fixation (by e.g.web-casting).
Right of retransmission: The right to control the act of rediffusing by wire or broardcasting transmitted programs.
Right of communication to the public by enlarging devices: The right to control the act of showing transmitted TV programs to the public by enlarging receiving devices.


Term of Protection of Neighboring Rights
Performance: 50 years after the performance
Phonogram: 50 years after the first sale (50 years after the first fixation, if not publicly soled for 50 years)
Broadcasting Program: 50 years after the transmission
Wire Diffusion Program: 50 years after the transmission


Q1. What is the source of the term, "neighboring rights"?
A1. It derived from an English phrase, "certain rights called neighboring on copyright".


Q2. Do neighboring rights include "moral rights"?
A2. Yes. However, it is only "performer's rights" that includes moral rights: right of authorship and right of integrity. The "WIPO Performances and Phonograms Treaty" stipulates performer's moral right but in terms of only "aural" performances.


Q3. How is the remuneration right of performers and phonogram producers for broadcasting and wire diffusion of commercial phonograms managed?
A3. Based on the relevant provisions in the Copyright Law, performers and phonogram producers are granted the remuneration right to receive fees when commercial phonograms (fixing their performances or phonograms) are directly used in broadcasting or wire diffusion. This right is to be exercised only through the single collective society for each which is designated by the Government. At present, GEIDANKYO (Japan Council of Performers' Organizations, a public-interests body corporate) and the RIAJ (Recording Industry Association of Japan, an ordinary body corporate) are designated respectively as such collective societies. The amount of the fee is fixed through negotiations and contracts between these societies and broadcasting or wire diffusion organizations, and the collected fees are distributed based on the rules of each society.


Q4. How is the act of rental at music CD rental shops related to copyright?
A4. The act of rental of commercial phonograms is related to relevant rights of rental of three categories of right owners: author, performer and phonogram producer. Among them, author's right of rental is always an exclusive right, while those of performer and phonogram producer automatically change from an exclusive right to a remuneration right one year after the first sale to the public.


Q5. How was the neighboring rights system changed for the digitization of terrestrial broadcasting?
A5. The problem of poor reception areas caused by the start of terrestrial digital broadcasting drew attention of some people to one of the methods to overcome this problem, which was the simultaneous re-transmission of the programs by the system called "IP Multicast".
However, the IP Multicast Transmission is a kind of "interactive transmission" covered by the exclusive rights, i.e. the right of making available, of performers and phonogram producers, and therefore, the simultaneous retransmission called for the authorization of all relevant performers and phonogram producers. For the simultaneous retransmission of analog broadcasting, wire diffusion systems were widely used, and in this case, the exclusive rights of performers and phonogram producers had already been limited to remuneration rights or denied totally.
To balance such different cases and also to facilitate the simultaneous retransmission of digital terrestrial broadcasting by IP Multicast transmission, the Copyright Law was amended so that the exclusive rights of performers and phonogram producers be degraded to remuneration rights in terms of the simultaneous retransmission by IP Multicast transmission for the receiving area of the original broadcasting. Also, for the case of the simultaneous retransmission by wire diffusion, remuneration rights of performers and phonogram producers were newly established for balance.
These amendments are solely for neighboring rights, and therefore, authorization by the relevant authors is needed for any type of simultaneous retransmission of broadcasting program as before.

Rights Granted for Simultaneous Retransmission of Broadcasts
(before and after the amendment in 2006)
Wire Diffusion IP Multicast Transmission
Author Exclusive Right Exclusive Right
Performer No Right => Remuneration Right Exclusive Right => Remuneration Right
Phonogram Producers No Right => Remuneration Right Exclusive Right => Remuneration Right



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VI. How Are Foreign Works Protected?
--There is no boundary of copyright.--

As works, performances, phonograms and broadcasting programs are exploited across the boundaries, a number of countries in the world have been making considerable efforts to protect such contents internationally by establishing international treaties and agreements.

They include: the "Berne Convention" and the "Universal Copyright Convention" for the protection of author's right as well as the "Rome Convention" and the "Phonograms Convention" for the protection of neighboring rights. Japan has acceded to all of them and protects works, performances, phonograms and broadcasting programs of other member countries of the Unions.

Treaties of Author's Right
Berne Convention Universal Copyright Convention
Year of adoption 1886 1952
Number of contracting states 168 (Japan in 1899) 100 (Japan in 1956)
Full name The Berne Convention for the Protection of Literary and Artistic Works The Universal Copyright Convention
Characteristics national treatment national treatment
non-formality bridge between non-formality regime and formality regime by © mark
retroactivity non-retroactivity
protected works: those created by a national of a contracting state or published for the first time in a contracting state protected works: those created by a national of a contracting state or published for the first time in a contracting state
minimum term of protection: 50 years after the death of the author minimum term of protection: 25 years after the death of the author
(as of January 2015)

Treaties of Neighboring Rights
Rome Convention Phonograms Convention
Year of adoption 1961 1971
Number of contracting states 92 (Japan in 1989) 78 (Japan in 1978)
Full name The International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations The Convention for the Protection of Producers of Phonograms Against Unauthorized Duplication of Their Phonograms
(as of January 2015)

Also, the international agreement to establish the WTO (World Trade Organization) was adopted in 1994 and entered into force in 1995. This agreement incorporates the TRIPS Agreement (the Agreement on Trade-Related Aspects of Intellectual Property Rights), which stipulates norms and means for the international protection of Intellectual Property Rights such as copyright (both Author's right and neighboring rights), patent, trademark, etc. Japan acceded to this Agreement in December 1994, and the number of contracting states amounted to 160 in January 2015.

TRIPS Agreement (the Agreement on Trade-Related Aspects of Intellectual Property Rights)
1994 160 contracting states (Japan in 1994)
Major Provisions :
1) compliance with the provisions of the Berne Convention (excluding those on moral rights)
2) protection of computer programs and databases
3) introduction of the right of rental for computer programs, cinematographic works and phonograms
4) protection of performers, phonogram producers and broadcasters (the level of the protection is lower than the Rome Convention in a number of aspects)

In addition, a new international legal framework was established at the WIPO to cope with the development of digitization and network, viz. the adoption of two new treaties: the WCT (WIPO Copyright Treaty) and the WPPT (WIPO Performances and Phonograms Treaty). Japan acceded to the WCT in June 2000 and to the WPPT in July 2002.

WCT (WIPO Copyright Treaty)
1996 93 contracting states (Japan in 2000)
Major provisions :
1) protection of computer programs
2) protection of databases/compilations composed of non-works
3) introduction of the right of distributions with international exhaustion
4) introduction of the general right of "communication to the public "(covering the act of "making available")
5) expansion of the term of protection of photographic work (to 50 years after the death of the author)
6) provisions for "technological measures"
7) provisions for "right management information"

WPPT (WIPO Performances and Phonograms Treaty)
1996 94 contracting states (Japan in 2002)
Major provisions
1) moral rights of audio performances
2) rights of reproduction, broadcasting and communication to the public of live performances
3) economic rights of performers and phonogram producers with respect to phonograms
4) provisions for "technological measures"
5) provisions for "rights management information"

(as of February 2012)


(Key Words)
National Treatment:
The principle that the level of protection for foreign works should be equal to or higher than that for domestic works.
Non-formality rule:
The principle that copyright is granted automatically without any such formality as registration. A number of countries now adopt this rule including Japan.
Formality rule:
The principle that copyright is granted only upon such formality as registration, deposit of a copy, indication of the right owner, etc.
Retroactivity:
The principle that works created before a treaty entered into force in a country are also to be protected in the country if they are within the term of protection.
Non-retroactivity:
The principle that works created before a treaty entered into force in a country are not to be protected in the country.
© mark indication:
The mark provided for by the Universal Copyright Convention so that a foreign work be protected in the countries which adopt formality rules for copyright protection. The indication of the following three items should be made altogether on all copies of a work: (a) © mark; (b) year of the first publication; and (c) name of the author.

Exploitation of foreign works

In exploiting a foreign work, which is covered by a treaty, it is first needed to clarify if it is a work within the term of protection as there are some exceptions as follows:

1) Reciprocity in term of protection:
If the term of protection in the relevant foreign country is shorter than that in Japan, the term of protection in Japan is limited to the former.

2) Prolonged term of protection to recover wartime:
Based on the Peace Treaty between Japan and the United Nations member countries, the term of protection of works of such countries, which were supposed to be protected during the war, is prolonged for the period of the wartime. The added term is 3794 days for many works, however, it should be checked for each work. Also, term of protection of the right of translation is to be prolonged further for six months.

In addition to the above exceptions, there are some other exceptional treatments in such points as the right of translation, and therefore, subsisting rights should be checked and confirmed carefully to exploit a foreign work.

Q1. Are foreign works also protected in Japan?
A1. Yes. Japan is a member of the Berne Convention, the Universal Copyright Convention, the TRIPS Agreement and the WCT. Therefore, works of other member countries of these treaties (viz. works created by nationals of such countries and works first published in one of such countries) are protected in Japan. Also, works created by nationals of non-member countries of the above treaties are protected in Japan beyond the obligation under the treaties if they are first published in Japan.


Q2. Which countries do not have treaty relations with Japan? Is it OK to exploit works of such countries without authorization?
A2. Such countries as Vietnam and Iran have no treaty relation with Japan, and therefore, works created by nationals of such countries are not protected in Japan. However, such works are also protected in Japan if they were first published in Japan or other member countries of the treaties. Also, due attention should be paid to the member countries of the TRIPS Agreement.


Q3. How is the treaty relation between the US and Japan?
A3. The only treaty relation between the US and Japan used to be the Universal Copyright Convention. However, the US finally ratified the Berne Convention on March 1, 1989, and therefore, Japanese works are now protected in the US without © mark.


Q4. Is a work of a county in which the term of protection is 25 years protected in Japan up to 50 years after the death of the author?
A4. Based on the principle of "national treatment", Japan should ensure better or equal treatments for works of foreign countries which have treaty relations with Japan. However, term of protection is an exception clearly defined in the treaties, and is fixed based on a reciprocal basis. This means that if term of protection in the country of origin of the work is shorter (e.g. 25 years) than that in Japan, its term of protection in Japan is to be shortened down to the length in the country of origin (i.e. 25 years).

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VII. How Should A Work Be Used?
--Some points should be checked out.--

As has been explained, copyright is composed of various rights, and therefore, with a view to exploiting a work, it is, in principle, needed to have the authorization of all right owners. However, as there are some exceptional cases, it should be checked by the following process whether the authorization is necessary.

Checking process to exploit a work:


Making a contract with the right owner, the detailed nature of the exploitation of the work should be indicated as clearly as possible, and it is better to make a written contract to make sure of the authorized acts, the amount of royalty, the means of payment, other conditions, etc.

Q1. What should be done to publish a work?
A1. With a view to exploiting a pre-existing work, the necessity of authorization first should be checked, and if it is necessary, the authorization of the author should be obtained, following the above-mentioned process. This process also applies to the case of publication. If the publisher would like to have an exclusive license, he should have an exclusive contract of authorization (which does not mean any transfer of copyright) or, to be on the safer side, a contract to establish "the right of publication", which means a partial transfer of copyright from the author to a publisher. By the latter contract, the publisher can enjoy a more stable position than an exclusive licensee. The privileges of an owner of the right of publication include the legal right to claim for cessation of unauthorized reproduction as “book publication” and to litigate for economic compensation.


Q2. What are contact points to have information on the exploitation of works and contracts?
A2.
Governmental Body
Copyright Division, JCO (Japan Copyright Office), Agency for Cultural Affairs
Tel: +81-3-5253-4111
Copyright in General
Copyright Research and Information Center (CRIC)
(a public-interests body corporate)
Tel: +81-3-5348-6030
Tel: +81-3-5348-6036 (Consultancy Office)
Musical Works
Japanese Society for Rights of Authors, Composers and Publishers (JASRAC)
(an ordinary body corporate)
Tel: +81-3-3481-2121
Novels
Japan Federation for the Protection of Copyright on Literary Works
(a public-interests body corporate)
Tel: +81-3-3265-9658
Scenarios
Nihon Kyakuhonka Renmei
(a cooperative association)
Tel: +81-3-3401-2304
Nihon Shinario-sakka Kyokai
(a cooperative association)
Tel: +81-3-3584-1901
Phonograms
Recording Industry Association of Japan (RIAJ)
(an ordinary body corporate)
Tel: +81-3-5575-1304
Performances
Japan Council of Performers' Organizations (GEIDANKYO) Center for
Performers' Rights Administration (CPRA)
(a public-interests body corporate)
Tel: +81-3-5353-6600
Broadcasting
Nihon Hoso Kyokai (NHK)
Tel: +81-3-3465-1111
National Association of Commercial Broadcasters in Japan (NAB)
(a public-interests body corporate)
Tel: +81-3-5213-7707
Computer Programs
Association of Copyright for Computer Software (ACCS)
(a public-interests body corporate)
Tel: +81-3-5976-5175
Video Works
Japan Video Software Association (JVA)
(a public-interests body corporate)
Tel: +81-3-3542-4433
Japan International Movie Copyright Association (JIMCA)
(a profit-making company)
Tel: +81-3-3265-1401
Publications
Japan Book Publishers Association
(a public-interests body corporate)
Tel: +81-3-3268-1303
Reprography
Japan Reproduction Rights Center (JRRC)
(a public-interests body corporate)
Tel: +81-3-3401-2382
Artistic Works
Japan Artists' Association
(a public-interests body corporate)
Tel: +81-3-3542-2581
Photography
Japan Photographic Copyright Society (JPCA)
(an ordinary body corporate)
Tel: +81-3-3265-6655
Educational and other Films
Eizou Bunka Seisakusha Renmei (EIBUNREN)
(a public-interests body corporate)
Tel: +81-3-3662-0236

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VIII. In Which Cases Works Can Be Used Exceptionally Without Authorization?
--Some conditions should be fulfilled.--

The Copyright Law stipulates some exceptional cases in which copyright is limited and works can be exploited without authorization. However, even in such cases, strict conditions are provided for so that such exceptional exploitations without authorization may not unreasonably prejudice the interests of the author or they may not go counter to normal exploitation of the work. Also, the limitation of economic rights does not necessarily mean limitation on moral rights.

Examples of the cases of limitations on author's economic rights
Reproduction for private use
Reproduction by the user himself/herself for the purpose of his/her own personal use, family use or other similar uses within a limited circle.
Note: Compensation should be paid to the relevant right owners in digital sound/visual reproduction for private use.
Reproduction for private use after circumvention of technological measures is not covered by this exception.
Digital and knowing downloading (audio or audiovisual reproduction) of a work which is transmitted interactively to the public by an infringement of copyright is not covered by this exception.
Exploitation of accompanying works
Incidental fixation, reproduction and adaptation of an accompanying work which cannot be separated when a visual work, such as cinematographic work and photographic work, is created.
Note: Any exploitation that unreasonably prejudice the interests of the copyright owner is not covered by this exception.
Live broadcasting (which is not creation of a work) is not covered by this exception.
Exploitation in the process of consideration to seek authorization Exploitation in the process of considering a future contract with the author or a future application for compulsory license, to the extent deemed necessary.
Exploitation for work-related R&D Exploitation for R&D of technologies for exploitation of works such as recording, transmission, etc. to the extent deemed necessary.
Reproduction in libraries Reproduction of a part of library materials for library users at certain libraries designated by the Copyright Law. Digital reproduction by the National Parliamentary Library immediately after the legal deposit to avoid any degradation and damage of its library materials.
Digital reproduction and interactive transmission 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.
Quotations Reproduction as quotation of a pre-existing work within one's own work, under some conditions.
Reproduction in school textbooks Reproduction to incorporate in school textbooks authorized by the Government to the extent deemed necessary for the purpose of school education.
(The user should inform the author of the reproduction and compensation should be paid to the author.)
Reproduction to make enlarged textbooks
Enlarging reproduction of a work incorporated in a textbook to make an enlarged textbook for children with visual and other disabilities who cannot use ordinary textbooks.
Note: Remuneration should be paid to the copyright owner for such reproduction for a profit-making purpose.
Broadcasting and wire diffusion in school education programs
Broadcasting and wire diffusion in a program complying with the National Curriculum Standard.
Note: The user should inform the author of the transmission.
Compensation should be paid to the author.
Reproduction and public transmission for teaching materials at education institutions
Reproduction to make educational materials by a teacher or a pupil/student for his/her own class at non-profit education institutions under some conditions.
Live transmission of such materials to pupils/students at remote/satellite classrooms.
Note: The interests of the right owner should not be prejudiced unreasonably.
Reproduction and public transmission as a part of examination questions
Reproduction or public transmission to use as a part of questions of tests, examinations or others to measure knowledge/skills.
Note: Compensation should be paid to the author in the case of profit-making examination.
Reproduction for the visually disabled Reproduction of a work into Braille and digital storage and transmission of Braille data to the public.
Change of a visually expressed work into another form perceivable to those with visual and other disabilities including interactive transmission to the public (by designated bodies).
Reproduction for the auditorily disabled Change of a auditorily expressed work into another form perceivable to those with auditory and other disabilities including interactive transmission to the public (by designated bodies).
Intangible communication to the public for non-profit-making purposes Some cases of communication to the public (e.g. public performance, public recitation, public display, public reading) for non-profit-making purposes under some conditions.
Reproduction, broadcasting and wire diffusion of articles on current topics
Reproduction in the press and broadcasting or wire diffusion of pre-existing articles on current topics in newspapers or periodicals.
Note: Excluding the case that such acts are explicitly prohibited.
Exploitation of political/judicial speeches
Exploitation by any means of political speeches delivered in public and speeches delivered in the course of judicial proceedings.
Note: Excluding the case to make a collection of speeches of the same person.
Reporting of current events Exploitation by any means of a work involved in the event or seen/heard in the course of the event for the purpose of reporting current events. (Example: the reproduction of a famous painting, which was stolen, in the newspaper, reporting its discovery)
Reproduction for
judicial/administrative/legislative proceedings
Reproduction for judicial proceedings, internal use in legislative bodies or internal use in governmental organizations including those for application for industrial property rights and pharmaceutical control.
Note: The interests of the right owner should not be prejudiced unreasonably.
Document Preservation by Archives Law Reproduction and other exploitation (e.g. communication to the public to the extent deemed necessary) by the directors of national and local Archives for the preservation of documents based on relevant legislation.
Reproduction and other use for administrative information disclosure Reproduction or other exploitations for the proceedings under the Administrative Information Disclosure Act or corresponding local legislations.
Reproduction of a work transmitted through the Internet by the National Parliamentary Library Storage of a work transmitted through the Internet by the National Parliamentary Library for the necessary collection of such works.
Translation, adaptation, etc. accompanied by exceptional use Translation, musical arrangement, transformation and adaptation of a work together with an exceptional use for such purposes as private use, reproduction for educational materials, reproduction for the visually disabled, etc.
Temporary reproduction for broadcasting or wire diffusion Reproduction and storage for a limited period of time to produce recorded programs to be broadcast or diffused by wire later.
Exhibition of artistic/photographic works by the owner of the originals Exhibition of the originals of artistic or photographic works done by their owners.
Exploitation of artistic works located in open places Exploitation of artistic works permanently located in open places under some conditions.
Reproduction in booklets of exhibitions Reproduction of artistic or photographic works in pamphlets/booklets of exhibitions to explain/introduce them to spectators.
Reproduction and interactive transmission to the public for Internet auction. Reproduction and interactive transmission to the public of an artistic work, photographic work, etc. for display for an Internet auction (with special treatment to avoid unreasonable damage to the right owner).
Reproduction/adaptation of a computer program by the owner of a copy Reproduction or adaptation of computer programs by the owners of the copies to use them in his/her own PC.
Temporary storage for the maintenance or repair of a machine Temporary reproduction in a backup storage for the maintenance or repair of a machine with memory devices
Reproduction to prevent transmission failure Reproduction of a work by mirroring (to cope with excessive accesses), backing-up (to recover any transmission problem), caching (for efficient relaying), etc. by an Internet provider to prevent transmission failure.
Reproduction for Internet search services Reproduction and interactive transmission to the public of a work by an Internet search service provider to carry out such a service (under the condition that the right owner does not refuse it and the use is stopped immediately when the work is illegally used).
Reproduction for the analysis of information Necessary reproduction of a work to analyze the information.
Reproduction accompanied by use of a computer Technologically indispensable reproduction of a work in the data processing within a computer.
Storage and adaptation in a memory for the preparation of Internet Service Storage and adaptation in memory devices such, as a server, for the provision of Internet Service for the sake of better and more efficient supply of information.
Distribution of copies made by a limitation clause Distribution to the public of a copy of a work made by a limitation clause for citation, etc.


Q1. In which libraries is the exceptional reproduction without authorization permissible?
A1. The libraries which can make copies of library materials for the users, making use of the relevant limitation clauses in the Copyright Law, are limited to such libraries as public libraries, university/college libraries and some others open to the public designated by the Government. It is permitted to such libraries to reproduce their library materials within the framework of their non-profit-making services.
The conditions for such reproduction are: it is done (1) at the request of a user of the library; (2) for the purpose of the user's own investigation or research; (3) for a part of a work already made public; (4) for a single copy for each user; etc.
Also, the National Parliamentary Library, which collects all the books and other materials published in Japan and has the major role to preserve such materials, may reproduce in digital format, without authorization, its materials immediately after the legal deposit in order to avoid any degradation and damage of such materials. The National Parliament Library may also make digital copies of its library materials and transmit them to certain libraries designated by the Copyright Law 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.


Q2. Is it permissible by the limitation clauses in the Copyright Law to reproduce pre-existing works to use as teaching/learning materials published/sold for schools?
A2. No. The exception for reproduction to make educational materials at school applies under the condition that the interests of the right owner are not prejudiced unreasonably in terms of the category of the work, the nature of the use, the number of copies, the nature of the act of reproduction, etc. Such publications as workbooks and exercise books for schools or pupils, which are sold to be bought by each user, are typical examples to prejudice the interests of right owners.


Q3. How should a work be quoted properly? How should "indication of sources" be done?
A3. Quotation as one of the limitations on copyright under the Copyright Law means to exploit a pre-existing work by e.g. introducing/copying a part of a pre-existing thesis in one's own new thesis to strengthen the argument of the latter. It can be done without authorization of the author under such conditions as: it is done to a fair extent; the quoted part is subordinate to the work as a whole; the range of the quoted part is made clear by a pair of quotation marks, etc. In quoting a pre-existing work, the source should be indicated, and in more concrete terms, such items as the title and the name of the author should be clearly shown to a reasonable extent so that the source may be identified.


Q4. Is it permissible to make a copy of a rented video after the circumvention of technological measures against reproduction?
A4. Some videotapes and DVDs are protected by technological guards against reproduction so that copying device may not function or copied data be distorted. Such mechanisms are called "technological measures" (also called "copy protection", "copy guard", "copy control", etc.). The limitation for "private use" does not apply to reproduction after the circumvention of technological measures, and therefore, such an act of reproduction constitutes infringement. The distribution, lending, uploading, etc. of circumvention devices or programs also constitute violations to be punished by penal sanctions.


Q5. What is "rights management information" ?
A5. Rights management information means pieces of digital information (which indicate such items as the name of the right owner, the conditions of authorization for some uses, etc.) put in copies of or transmitted together with works, such as visual and audio contents, making use of digital water mark technologies. They are often used to find infringed copies on the Internet and/or to manage contracts efficiently. Therefore, any addition of false information, unauthorized change/deletion, etc. would cause serious problems in the management of right exercise and contract, and such acts constitute violation to be punished by penal sanctions.


Q6. Is there any problem of copyright in the information search service on the Internet, in which various works are reproduced and transmitted?
A6. It was pointed out by a number of copyright experts that such acts carried out by Internet search service providers as the collection/storage of disclosed information, the storage of such information for display, the provision of such information to the users constituted the infringement of reproduction right and public transmission right.
As there was a worry that the protection of copyright in this aspect might hamper the development of the"Internet-based information-oriented society", the Copyright Law was amended in 2009, and the above-mentioned acts carried out to the extent necessary for such services were covered by newly established limitation clauses, namely permissible without authorization of relevant right owners.
As the conditions to adapt these new limitations, the works which may be reproduced and transmitted should be those already made transmittable without any notice to prohibit collection, and also, the provision of the information should be stopped immediately when the first uploading proves illegal.


Q7. Does it constitute any infringement of copyright or public transmission right to transmit and display the image of a commodity offered in an Internet auction site?
A7. Together with the above Q6 issue, a new limitation clause was made in the amendment of the Copyright Law in 2009, and it was made permissible without authorization of the copyright owner to reproduce and transmit in Internet auction sites the images of such offered commodities as artistic and photographic works.
In the Internet auction, possible buyers cannot directly see the offered commodities, and therefore, clear images of the commodities are indispensable. However, a number of copyright experts claimed that the acts of reproduction and public transmission constituted the infringement of copyright.
To facilitate the activities of the Internet auction sites, it was made permissible, by the above-mentioned amendment of the Copyright Law, to reproduce and transmit the images of the offered works under the condition that appropriate measures are taken, such as diminishing the size and lowering the quality.


Q8. In which cases is it permissible to reproduce copyrighted works without authorization of right owners for the sake of the disabled?
A8. For example, disclosed works may be reproduced (and stored in a computer as well as transmitted to the public) in Braille without authorization for the use by the visually disabled.
Also, for better access to information by the disabled, the range of the target groups, possible ways of exploitation, etc. were expanded by the amendment of the Copyright Law in 2009 as follows:

[For the Visually Disabled]
Kind of Disability: All the disabled with any difficulty to perceive visual expression(including those with visual disability and color-perception disability)
User: Public libraries (in addition to Braille libraries)
Way of Use: Any way of use needed to the visually disabled (such as enlargement and recording)

[For the Auditorily Disabled]
Kind of Work: All the disclosed works of auditorily perceivable expression (including cinematographic works)
Kind of Disability: All the disabled with any difficulty to perceive auditory expression(including those with auditory disability and hearing difficulty)
User: Public libraries
Way of Use: Any way of use needed to the auditory-disabled (such as addition of subtitles and sign language as well as lending of cinematographic works with subtitles)

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IX. What Happens to Infringement on Rights?
--Infringement and Remedies--

Exploiting a work without authorization of the right owner constitutes an infringement on copyright (economic right) except for the exceptional cases which are explicitly provided for in the Copyright Law.
Also, such acts as modifying the contents and/or title of a work, indicating the true name of the author who wants to hide his name, etc. constitute infringements on copyright (moral rights), too.
Furthermore, such acts as distributing (distribution: transfer of ownership and lending of copies of a work to the public, whether with or without payment) unauthorized copies knowingly, possessing such copies knowingly for the purpose of distribution, modifying rights management information intentionally, etc. are deemed to constitute infringements.

1)civil remedy

Against infringements on rights as the above, relevant right owners may make the following legal claims, the implementation of which would be ensured by the court if necessary:

    a) cessation of the act;
    b) compensation for the damage;
    c) restoration of the profits; and/or
    d) recovery of honor.

2)penal sanction

Infringement on copyright constitutes a crime, and therefore, the infringer is to be punished by penal sanctions. (The prosecution takes place only upon the complaint of the right owner.) Contents of the penal sanction vary as following examples:

    Infringement of copyright, the right of publisher, or neighboring rights (exclusive rights):
    → imprisonment for a term up to ten years or a fine up to ten million yen
    Infringement of author’s moral rights or performer’s moral rights
    → imprisonment for a term up to five years or a fine up to five million yen

In the case of infringement (excluding that on moral rights) committed by a body corporate, the amount of the fine is up to 300 million yen.

Also, by the amendment of the Copyright Law on October 2012, a new penal sanction provision (imprisonment for a term up to two years or a fine up to two million yen) was introduced to the following case: knowing downloading of illegally uploaded digital “sounds” or “moving images” (excluding other types of works) for the purpose of “private use” (excluding other exceptions), knowing that such sounds or moving images are traded in a normal market.

The court may sentence both imprisonment and fine at the same time.


Q1. Is it permissible as the exception of "reproduction for private use" to make a copy of a work for a business purpose, which will be used only by myself?
A1. No. Even if the copy will be used only by one person, reproduction for a business purpose (including non-profit-making business purposes) is excluded from the "reproduction for private use" in the Copyright Law.


Q2. Is it permissible as the exception of "reproduction for private use" to make a copy of an audio/audio-visual work, making use of an audio/audio-visual copyright and dubbing machine at a shop?
A2. No. Reproduction by means of automatic reproducing machines placed for the use by the public is excluded from the "reproduction for private purpose" and therefore, should not be done without authorization. However, it does not constitute infringement of copyright, for the time being, to reproduce copyrighted works by automatic reproducing machines solely for writings and printings, which are set in such public places as convenience stores.


Q3. Is it permissible to sell a videotape to a video rental shop, in which an audio-visual work is recorded by the act of "reproduction for private use"?
A3. No. Copies of works which have been made by limitations on rights should be used exclusively for the purposes stipulated in the relevant provisions in the Copyright Law. Therefore, such videotapes should not be sold to video rental shops.


Q4. Does it constitute infringement to rent a counterfeit videotape knowingly? How about simply possessing such a videotape for rental in the future?
A4. Yes. It is deemed to constitute infringement to sell/lend to the public copies made without authorization of the right owner. Simply possessing such copies is also deemed as infringement if the purpose is distribution or lending to the public. These acts are to be punished by penal sanctions.
Also the amendment of the Copyright Law in 2009 made it deemed to constitute infringement to knowingly propose the sale of an infringed copy of a work.


Q5. Is there any difference between author's right and neighboring rights in terms of the limitation on rights and infringement/remedies??
A5. There is no difference in general except for some minor points.


Q6. Is it permissible to use a work without authorization when the right owner cannot be located?
A6. No. However, the Copyright Law provides for that, when the right owner of a work cannot be found for the reason that he/she is unknown, it may be used under the authority of a compulsory license issued by the Commissioner of the Agency for Cultural Affairs (the system of compulsory license by the Agency for Cultural Affairs).
This system applies not only to works but also to such protected matters as performances incorporated in pre-existing broadcasting programs, which are protected by neighboring rights.
This license is issued upon a request from the user, after due efforts and diligence and depositing compensation.
For further details, please contact the Copyright Division of JCO (Japan Copyright Office) of the Agency for Cultural Affairs.


Q7. Does it constitute any infringement of copyright to download in a personal computer for private use a work which is illegally uploaded and transmitted?
A7. Yes, it does in the case of “private use”. However, it does so only in the case of digital downloading of “sounds” or “moving images” (excluding other types of works) for the purpose of “private use” (excluding other exceptions).
A new penal sanction was introduced by the amendment of the Copyright Law on in 2012 (imprisonment for a term up to two years or a fine up to two million yen.)

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