Right of distribution

[Aaron Gerow]

Some time ago I reported on a court battle over whether the resale of 
video games in used game shops is a violation of copyright laws.  
Yesterday, there was another ruling in the battle which essentially said 
the resale does not violate the law.

What is interesting about the case from a film perspective is the fact 
that it centers around the question of whether video games are protected 
under the provision in Japanese Copyright Law which gives the copyright 
owner of a film the right of distribution (hanpuken), and thus control 
over how it is distributed.  Copyright owners of records and books do not 
have this right (and thus used book and record stores are legally no 
problem). If one were to take this literally, it means that such 
practices as the sale of used videos, or possibly even the importation 
into Japan (parallel importing) of videos sold abroad is illegal without 
the consent of the copyright owner in Japan.

Seeking such rights, video game makers like Enix argued that video games 
are like films and should get equal protection.  The lower court argued 
that whereas films are shown in public to a large number of people, games 
involve a small number and "change" each time they are played.  They are 
thus not a fixed thing like a film.  The higher court, however, 
effectively acknowledged that video games are like films and thus 
technically the copyright holder should have right of distribution.  The 
problem is, the court argued, that right of distribution is given to film 
because of the nature of its distribution system (showing in theaters in 
front of many people, etc.).  If the reproduced object is to be shown in 
a similar way, right of distribution holds, but if it is mass produced, 
with each object only being shown to a few, the right does not hold.

The plaintiffs complained about the decision, but the defendants praised 
it, saying that right of distribution should be limited only to things 
like film which have only a limited number of copies (the distribution of 
which thus could possibly be controlled), and not to mass produced items 
the distribution of which is impossible to control.

We could argue, then, that the court decision implies that right of 
distribution holds in film only for film prints and not for mass produced 
items like videos.  This, of course, is just my interpretation, but it 
will be interesting how, with the increased concern for "content" these 
days, how video producers in Japan will respond to this and later 
rulings.  (An Osaka court will rule in another video game case later this 
week.)

Aaron Gerow
Yokohama National University
KineJapan list owner
For list commands: send "information kinejapan" to 
listserver at lists.acs.ohio-state.edu
Kinema Club: http://pears.lib.ohio-state.edu/Markus/Welcome.html