Copyright System in Japan

    II. HISTORY OF COPYRIGHT SYSTEMS IN JAPAN



    (1) Establishment of the Modern Copyright System

    Japan marked its first step of development toward a developed country in 1868 when the Meiji Restoration took place after its 270-year reign of Tokugawa (Edo) Shogunate and its isolation policy. Among the developments of various political, legal, economic and social systems, the system of copyright was also established and developed gradually after the Meiji Restoration. The first legislation on copyright was the Publishing Ordinance, which was enacted in 1869. This Ordinance provided for both the protection of copyright and the regulation on publishers. In 1887, the copyright part of this Ordinance became independent as a newly established legislation called the Copyright Ordinance, which is said to be the first copyright legislation in Japan in substance.

    Japan acceded to the Berne Convention in 1899. As a new set of provisions was required to comply with the Berne Convention, the Copyright Ordinance was changed as a whole into the Copyright Law in 1899. This Copyright Law of 1899 (the old Copyright Law) is referred to as the first modern copyright law of Japan consistent with the international standard of copyright protection.

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    (2) Development of the Copyright System

    After the initial enactment, the Copyright Law of 1899 was revised and amended several times as follows in order to expand the range of copyright protection and to facilitate fair exploitations of works.

    1910: Architectural work was added as a type of work of authorship to be protected. The protection of works against unauthorized cinematographic adaptation and presentation was stipulated. (In the same year, Japan ratified the Berlin Act of the Berne Convention of 1908.)
    1920: The protection of musical performances was stipulated principally against unauthorized audio fixation. (Performances are currently protected by neighboring rights regimes in the majority of countries including Japan, however, they used to be protected by the copyright regime in Japan under the old Copyright Law up to 1970.)
    1931: The protection of moral rights was expanded. The rights of broadcasting was introduced. The protection of cinematographic works was stipulated. (In this year, Japan ratified the Rome Act of the Berne Convention of 1928.)
    1934: The right of publication was introduced. The rights of phonogram producers, which are now protected as neighboring rights, was stipulated.

    In addition to above revisions, the Law on Intermediary Business Concerning Copyright was enacted in 1939. This Law provided for regulations on collective management of musical, literary and dramatic works for the benefit of copyright owners and users, aiming at fair exploitation of works.

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    (3) Enactment of the New Copyright Law

    The old Copyright Law remained in force for some seventy years since its enactment in 1899 although minor amendments were made several times. However, as the means of reproduction and communication of works developed increasingly rapidly, a number of provisions in the old Copyright Law became insufficient and obsolete to cope with such new developments.

    With regard to the international framework of copyright protection, the Berne Convention was revised continually in Brussels in 1948, in Stockholm in 1967 and in Paris in 1971. Also, an international convention for the protection of neighboring rights was concluded in Rome in 1961 (the Rome Convention) in order to establish an international framework to protect the rights of performers, phonogram producers and broadcasting organizations.

    Under such circumstances, the Government of Japan decided to reform its copyright system thoroughly. After far-reaching discussions at the Copyright System Council, started in 1962, in response to the request of the Government, the Government drafted a totally new copyright law in 1966 based on the report of the Council. The draft law was submitted to and approved by the Diet in 1970, and subsequently, the new Copyright Law was enacted in the beginning of 1971.

    The major characteristics of the new Copyright Law are as follows.

    Firstly, for the purpose of strengthening copyrights, both moral rights and economic rights were clearly defined. With regard to the term of protection, it was extended from 30 years to 50 years after the death of the author.

    Secondly, considerably detailed provisions of limitation on rights were introduced to permit fair exploitations of works in exceptional cases such as reproduction for personal use, in libraries, for educational purposes, etc. However, strict and detailed conditions were stipulated for each case under the limitation, and in some cases obligation to pay proper compensation was imposed on the users.

    Thirdly, neighboring rights were newly established to protect the rights of performers, phonogram producers and broadcasting organizations. This was done to comply with the obligations under the Rome Convention.

    Fourthly, the new Copyright Law contained such other detailed provisions as follows: the exploitation of works under compulsory license in the case where the copyright owner is unknown; registration systems (registration of the date of first publication, true name of the author, transfer of copyright, etc., which are not compulsory to have the eligibility of ownership) and an arbitration system for dispute settlement concerning copyright. Furthermore, the new Copyright Law incorporated strengthened penal sanctions on the infringement of copyright.

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    (4) Accession to International Conventions

    Japan has been a member of the Berne Union since 1899. As the contents of the new Copyright Law fulfilled the obligations of both the Brussels Act (1948) and the Paris Act (1971) of the Berne Convention, Japan acceded to the former in 1974 and ratified the latter in 1975.

    To cope with the digitization and networking society, Japan acceded to the WIPO Copyright Treaty in 2000, the WIPO Performances and Phonograms Treaty in 2002 and the Beijing Treaty on Audiovisual Performanaces in 2014.

    With regard to other international conventions, Japan has ratified or acceded to them as follows:
    1956: The Universal Copyright Convention
    1978: The Phonograms Convention
    1989: The Rome Convention
    1994: The TRIPS Agreement

    The level of the protection of author's right and neighboring rights in Japan exceeds the obligations of the above international conventions in a number of aspects.

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    (5) Recent Developments in Relevant Legislations

    Keeping up with the significant developments in relevant technologies, changes in socio-economic backgrounds and international movements after 1971, the new Copyright Law has been revised a number of times. The major recent revisions of the Copyright Law after 1984 are as follows:
    1984: Introduction of "the right of rental"
    1985: Stipulations to clarify the protection of "computer programs"
    1986: Stipulations to clarify the protection of "databases"
    Introduction of "the right of interactive transmission"
    Introduction of "wire diffusion organizations" as the fourth category of neighboring rights owners
    1988: Strengthening of penal sanctions (against the possession of pirated copies for the purpose of distribution)
    Expansion of the term of protection of neighboring rights (from 20 to 30 years)
    1989: Amendments to comply with the Rome Convention
    1991: Expansion of the term of protection of neighboring rights (from 30 to 50 years)
    1992: Introduction of "the compensation system for digital private recording"
    1994: Amendments to comply with the TRIPS Agreement
    1996: Expansion of the duration of the protection of photographic works
    Expansion of the range of retroactive protection of neighboring rights beyond the obligation under the TRIPS Agreement
    Increase in the amount of fine as penal sanction
    Introduction of a new system for damage information
    1997: Establishment of the new right of "making transmittable (available)"
    1999: Amendments to comply with the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty
      Establishment of the new provisions on "Technological Measures" and "Rights Management Information"
      Establishment of the new right of transfer of ownership
      Extension of the right of presentation
    2000: Stipulations of limit on author's rights for certain cases of exploitation of works for the visually disabled and the hearing impaired
    Strengthening of Civil remedies and penal sanctions (the ceiling of a fine against infringement by legal persons is raised to not exceeding a hundred million yen)
    2002: Amendments to comply with the WIPO Performances and Phonograms Treaty
      Establishment of the new moral rights of Performers
      Establishment of the new right of making works transmittable to broadcasting organizations and wire diffusion organizations
      Change of the beginning of term of Protection of Phonograms
    2003: Expansion of the term of the protection of cinematographic works
    Stipulations of limit on rights for reproduction for preparing textbooks in large print and public transmission in educational institutions, etc.
    Strengthening of civil remedies
    2004: Establishment of the new right of "Rental right for books and magazines" by removing the supplementary provision concerned
    Establishment of the new prevention measures for Sound recordings from flowing back across the border
    Strengthening penalties for copyright infringement
    2006: Facilitation of simultaneous retransmission of regular broadcast program by IP multi-cast broadcasting
    Establishment of limitations on rights, such as interactive transmission of digitally recorded books for visually disabled, reproduction for submitting documents in patent examination procedure and pharmaceutical approval procedure, and temporary reproduction for repair or maintenance of machines
    Exportation of pirated goods etc. shall be considered as an act constituting infringements on copyright and related rights
    Strengthening penalty for copyright infringement
    2007: Establishment of act on Prevention of Unauthorized Recording of Movie in Theaters for development of movie industry and culture.
    2008: Expansion of Limitation on Copyright for reproduction in school textbook in large for the purpose of study use by visual disabled children or pupils.
    2009: Measures for making it easier to use copyrighted works through the internet. The following cases are permissible without authorization of right holders.
    - reproduction to implement an Internet Search
    - secondary use of old broadcast program etc. through the Internet in case such as where the whereabouts of the copyright holder is unknown
    - digitization of the materials housed in the National Diet Library
    - publication of images of art works part of online sales
    - reproduction for the purpose of information analysis and research
    - reproduction for the purpose of making transmissions more efficient etc.
    - reproduction required in using a computers
    Measures for deterring the illegal distribution of copyright materials. The following act shall be considered to constitute infringement on copyright
    - offer the sale of pirated works through the Internet being aware of infringement
    - reproduction of music and motion pictures that has been downloaded illegal through the Internet being aware of infringement over if it is for the purpose of private use
    Expansion of Limitation on Copyright as measures for making it equal access to information for the people with disabilities
    Stipulations of limit on rights for reproduction of collecting internet materials by the Chief Librarian of the National Diet Library under the National Diet Library Law.
    2012: 1. Provisions stipulating that the following types of acts shall not constitute infringement are made.
    Provisions relating to 'so-called' incidental use etc.
    - Exploitation of a work appearing incidentally in a photographic work etc.
    - Exploitation of a work deemed to be necessary for the process of achieving legitimate use of the work.
    - Exploitation of a work as a material for developing technology or testing for practical use.
    - Exploitation of a work for information processing necessary for preparation of providing information through the use of information and communications technology.
    Provision relating to the interactive transmission of library materials by the National Diet Library.
    Provision relating to the exploitation of a work on the basis Public Records Management Law etc.
    2. Following provisions are made for strengthening protection of copyright and related rights.
    Provision relating to technological protection measures for copyright and related rights.
    Provision relating to criminal penalties against downloading illegally uploaded music or movie files.
    2014: 1. Amendment of provisions relating to the right of publication in response to e-books (changes are underlined)
    (1) Establishment of the right of publication
    The owner of copyright may establish the right of publication in favour of a person who undertakes
    to publish the work in a writing or a printing (including the distribution of works recorded on a memory)
    to transmit copies of a work recorded on a memory on the Internet
    (2) Contents of the right of publication
    Right to reproduce a work in a writing or a printing for the purpose of distribution (including the right to reproduce a work on an electro-magnetic record stored on a memory)
    Right to transmit copies of a work recorded on a memory on the Internet
    (3) Obligation of publication and request to terminate the right of publication
    Unless otherwise stipulated in the contract, the owner of the right of publication shall, depending on the contents of the right, have the obligations as follows:
    -To publish or transmit on the Internet within a period of six months after the date of receipt of the manuscripts, etc.
    -To publish or transmit on the Internet continuously in accordance with business practice.
    The owner of copyright may terminate the right of publication if the owner of the right of publication has not discharged his or her obligation mentioned in (3)①.
    2. Amendment to accede to the Beijing Treaty on Audiovisual Performances
    In line with the Beijing Treaty on Audiovisual Performances, protection under the Copyright Law is also granted to performances by nationals of the Contracting Parties of the Treaty.


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    (6) Enactment of the Law on Management Business of Copyright and Neighboring Rights

    The Law on Intermediary Business concerning Copyright remained in force for some sixty years without any significant amendments since its enactment in 1934. However, in order to consolidate new business rule with regard to copyright management, responding to the development of content industry in the IT revolutionary age, an introduction of new copyright business law has been examined.

    From such a point of view, the Law on Intermediary Business concerning Copyright was abolished and the Law on Management Business of Copyright and Neighboring Rights was newly enacted in November 2000, whose main purpose is to facilitate establishment of new copyright management business. This law came into force in October, 2001.

    The outline of new system is as follows.
    (a) The categories of works under the law is extended to all categories of works and objects of neighboring rights.
    (b) With respect to prerequisites for engagement in copyright management business, the registration system is substituted for the license system.
    (c) With respect to rules on the royalty, the notification system is substituted for the approval system and the new dispute settlement system is introduced.


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