Copyright law

[Mark Nornes]

This has come up a few times on KineJapan, and so that discussion can be
retrieved from our archive. Since the topic is dear to all our hearts, 
I've been
looking into it a little with the help of Dave Azcue, one of our 
graduate students
in Michigan's joint law / MA degree. His teacher saws Dave probably 
knows
more about Japanese copyright law than anyone in the country. Here are
some of the things he tells me:

What's the law, and where is it?
In Japan: The Copyright Law (you can find it in Japanese in the Horei
Zensho), supplemented by the Berne Convention. In the U.S.: Title 17 of 
the
United States Code, also supplemented by the Berne Convention. The Berne
Convention has been adopted by most countries in the world. (North Korea
became a party to the Convention in April.) It sets default standards 
for
copyright laws. It also provides for reciprocity among nations. So 
Japanese
copyright holders are protected in the U.S., and vice-versa.

Depending on your level of interest, you may also consider investing $30
in: Marshall Leaffer, Understanding Copyright Law (Matthew Bender, 3rd 
ed.:
1999). It covers only U.S. law, but you probably need to understand U.S.
copyright law before studying Japanese copyright law.

You can find the relevant law in English at:
Japanese Copyright Law: http://www.cric.or.jp/cric_e/clj/
Berne Convention: 
http://www.law.cornell.edu/treaties/berne/overview.html
17 U.S.C.: http://www4.law.cornell.edu/uscode/17/

You may also find the following helpful:
U.S. Copyright Office Pub., "Copyright Basics":
http://lcweb.loc.gov/copyright/circs/circ1.html
On the Digital Millenium Copyright Act:
http://www.dfc.org//dfc1/Active_Issues/graphic/DMCA_index.html

What does the law say?
For U.S. law, read Leaffer. It will tell you everything you need to 
know.
Also read the "Copyright Basics" pub, linked above. For Japanese law, 
there
are the links above and probably books on the subject if you looked.

In a nutshell, authors of original and creative works obtain copyrights 
to
their fixed creations. Authors obtain rights immediately upon creation; 
no
registration is necessary. Copyrightable works include dramatic works
(authorship of Gone With the Wind), audio-visual recordings, and motion
pictures. Copyrightable subject matter is limited to "expression" and 
does
not extend to "ideas." So buttons on your VCR are copyrightable subject
matter, but the idea of the VCR is not. (You can get design protection
<design is a another sub-set of IP rights, along with copyright, patent,
trademark, etc.> for the physical appearance of the VCR, but the "idea" 
of
the VCR would be protected, if at all, under a patent.) Copyright
protection does not extend to parody or fair use (you can watch a
rented movie at home, and make a copy of it for your own private use at
home, etc.). Naturally, there are limits to both parody and fair use. 
Read
Leaffer and the linked sources for more details. You should read the
Japanese copyright law yourself. It is *much* easier to read and 
understand
than Title 17. You will be interested in understanding how "authorship" 
is
defined and restrictions on fair use, which can be found mainly under
"moral rights" and "lending rights."

You will probably be most interested in Articles 16 and 29 of the 
Japanese
Copyright Law, which provides:

[Note: Article 15 relates to work for hire]

Article 16. The authorship of a cinematographic work shall be 
attributed to
those who, by taking charge of producing, directing, filming, art
direction, etc., have contributed to the creation of that work as a 
whole,
excluding authors of novels, scenarios, music or other works adapted or
reproduced in that work; provided, however, that the provision of the
preceding Article is not applicable.

Article 29. (1) Copyright in a cinematographic work, to which the
provisions of Article 15, paragraph (2), the next paragraph and 
paragraph
(3) of this Article are not applicable, shall belong to the maker of 
that
work, provided that the authors of the work have undertaken to 
participate
in the making thereof.
(2) In the case of a cinematographic work, which is made by a 
broadcasting
organization alone for use exclusively for broadcasting purposes and to
which the provision of Article 15, paragraph (1) is not applicable, the
following rights comprised in the copyright therein shall belong to that
organization as the maker of cinematographic works:
  (i) rights to broadcast that work, and to diffuse by wire and 
communicate
publicly by means of a receiving apparatus the work thus broadcast;
  (ii) rights to reproduce that work, and to distribute its copies thus
reproduced among other broadcasting organizations.
(3) In the case of a cinematographic work, which is made by a wire
diffusion organization alone for use exclusively for wire diffusion
purposes and to which the provision of Article 15, paragraph (1) is not
applicable, the following rights comprised in the copyright therein 
shall
belong to that organization as the maker of cinematographic works:
  (i) rights to diffuse by wire that work, and to communicate publicly by
means of a receiving apparatus the work thus diffused by wire;
  (ii) rights to reproduce that work, and to distribute its copies thus
reproduced among other wire diffusion organizations.

You should read Article 29 (and other articles relating to 
cinematographic
works -- there are a few others) in comparison to 17 U.S.C. 105 (it is 
too
long to paste here, but you can link to it from the above URL), which 
has
rules for "diffusion" of the work (some of this is discussed below), 
and 17
U.S.C. 107 (fair use). You might find reading the Japanese code 
profitable,
but you won't learn much by reading Section 107 (or any other section in
Title 17) on your own, so you should look to Leaffer to understand it.

What are some of the key differences between U.S. and Japanese Copyright
Law?

(#1) TERM of copyright protection (under the U.S. Copyright Term 
Extension
Act of 1998, the term is now the life of the author PLUS +seventy+ 
years;
Under Article 51(2) of the Japanese Copyright Law, the term is the life 
of
the author PLUS +fifty+ years);

(#2) so-called "MORAL RIGHTS" (BASICALLY: BERNE provides for moral 
rights,
Japanese Copyright Law provides for moral rights (Arts. 18, 19, 20), but
the U.S. doesn't explicitly have moral rights, although much -- though
certainly not all (e.g., in the U.S. transformative use allows for free
use, although this right of end users seems to be much more limited in 
the
rest of the world)-- of what the rest of the world calls "moral rights" 
are
carved out of FAIR USE in 17 U.S.C. 107); and

(#3) OTHER FAIR USES in 17 U.S.C. 105. (Basically, when the U.S. adopted
Berne, it had to impose some of the moral rights provisions on
retransmission of copyrighted works. This is now in Section 105. But the
restaurant industry got a huge carve out from U.S. Copyright law that
allows them to play music and movies in eating and drinking 
establishments
of a certain size without infringing the copyright holders' rights. This
seems to be explicitly prohibited under Berne, and the rest of the 
world is
basically trying to sue the U.S. before the WTO to have this provision
repealed/modified, and the U.S. is resisting.)

Additional differences:
(#4) LENDING RIGHTS. For some bizarre reason European notions of 
copyright
have always extended to lending rights. I think this became part of 
Berne,
although if it did it became an optional provision, and obviously the 
U.S.
hasn't implemented it. But Japan has, and it can be found in Article 
26ter
of the Japanese Copyright Law, although Article 31 takes back from
copyright holders a little of what 26ter gives. The one sentence 
summary is
that in some cases certain Japanese library/lending
institutions/enterprises have to obtain permission from authors to lend
copyrighted works, whereas in the U.S. this almost never happens.

I found the following links in a brief google search and thought they 
might
be helpful. I couldn't tell you based on what I know now how reliable 
they
are, so caveat emptor:
http://www.softic.or.jp/en/articles/fordham_sugiyama.html
http://skyways.lib.ks.us/central/ebooks/firstsale.html
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