Copyright case

[Michael Raine]

I see Aaron has already addressed most of the points in my previous
message... I do think the encoding itself, and not just the menus etc, is
granted a new copyright in videos and DVDs though. As for the KineJun
comment, this is also the MPAA position. When some people tried to get the
Copyright Term Extension Act declared unconstitutional (because it applied
retroactively to existing works and because it made a mockery of the
constitution's claim that copyright be granted only for a "limited time")
the MPAA argued that Congress could do what it wanted, and had decided that
making old films commercially valuable to the owners of the original
materials made it more likely that the films would be preserved and made
available. They won. I can see the value of granting "creative commons"
access to older films but as long as the studios control the original
elements then with some exceptions the choice is between low quality
"bootlegs" and studio restoration, I think. Not sure how that applies to
Japan -- I've seen a lot more films at the Bungeiza than have been made
available on DVD. An enlightened government would declare old films part of
the national cultural heritage and have the Film Center distribute them. In
the meantime, perhaps it's more important to strengthen fair use access to
material for research and teaching. 

Michael 

-----Original Message-----
From: Aaron Gerow [mailto:gerowaaron at sbcglobal.net] 
Sent: Saturday, July 15, 2006 2:15 AM
To: KineJapan at lists.acs.ohio-state.edu
Subject: Re: Copyright case

> If this is true then where are all the Japanese silent cinema download 
> sites?

As Aidan said, there is probably just not enough interest around to support
such sites. It is not a question of time, because it was clear to anyone
that films made before 1952 were public domain even before the 2004
amendment to the Copyright Law. This court case only confirms that the
amendment extending copyright applied only to films whose copyright had not
expired, and that copyright had expired for films made in 1953.

There is also the problem of availability. While 16mm prints of old US films
are floating all over the place, that is not the case in Japan. 
Not only did few films survive, but few of these have been made available on
VHS and DVD, let alone 16mm. I also suspect that just because pre-1952 films
are public domain, that doesn't mean you can just go out and buy the new DVD
of Oshidori utagassen and copy it for sale (the version that includes the
authoring, menus, etc. can be copyrighted separately). You can do it if you
have a film print, however, which is what Matsuda Eigasha does with the old
films in its collection. I once talked with them about whether Shochiku ever
complained that they were selling a VHS of I Was Born But even though
Shochiku was as well. They said no, but given how delicate these things can
be, they did tell Shochiku before hand what they were doing.

This is probably another reason why this doesn't happen much: Japanese
companies can be obnoxious about asserting their rights even when they don't
have them. It was kind of sad reading the comments of someone from KineJun
in the Mainichi article about this copyright case: he was falling all over
himself saying how bad a decision it was because, he says, it will prevent
companies from producing good DVDs of films (by the same logic, public
domain should be eliminated all together). The industry position seems to be
that protecting their rights protects those of everyone.

Thus while the Film Center should do what the Library of Congress is doing,
and make available some of its early film collection for internet download,
I suspect they will never do it because they don't want to ruffle any
feathers in the industry. But who knows?

Aaron Gerow
KineJapan owner

Assistant Professor
Film Studies Program/East Asian Languages and Literatures Yale University

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