1. Introduction
The Act Partially Amending the Copyright Act was approved at the 204th ordinary session of the Diet on May 26, 2021, and promulgated on June 2 of the same year as Act No. 52 of 2021.
The amendments by this Act came into effect as of the following dates: (1) regarding the review of provisions on the restriction of rights related to libraries, (i) measures on transmission of rare or out-of-print materials by the National Diet Library (NDL) came into effect as of May 1, 2022, and (ii) measures on public transmission of library materials by each library or similar facility came into effect as of June 1,2023; and (2) measures on facilitation of processing of rights for simultaneous distribution of broadcast programs on the internet came into effect as of January 1, 2022.
2. Purpose of the Amendment
This Act consists of amendments relating to the following two points: (1) review of provisions on the restriction of rights related to libraries and (2) facilitation of processing of rights for simultaneous distribution of broadcast programs on the internet.
With regard to (1), based on the "Report on Review of Provisions on the Restriction of Rights Related to Libraries (Response to Digitalization and Networking)" compiled by the Copyright Subdivision of the Cultural Council in February 2021 and other materials, the following amendments are made to improve the people's access to information and to promote sustainable research activities: (i) the NDL becomes able to transmit on the internet, without the authorization of the right holder, a material that is difficult to obtain through normal trade channels because it is out of print or for a similar reason so that it may also be inspected from each home, etc.; and (ii) each library or similar facility becomes able to make public transmission of a part of a library material, without the authorization of the right holder, under certain conditions by paying compensation.
Regarding (2), based on the "Report on Facilitation of Processing of Rights for Simultaneous Distribution of Broadcast Programs on the Internet" compiled by the Copyright Subdivision of the Cultural Council in February 2021 and other materials, comprehensive measures, including the following, are taken to realize the smooth processing of rights similar to that in broadcasting, from the viewpoint of increasing the convenience for viewers and promoting the content industry: (i) expansion of provisions on the restriction of rights; (ii) creation of provisions on presumption of authorization; (iii) facilitation of exploitation of phonograms and phonogram performances; (iv) facilitation of exploitation of video performances; and (v) expansion of the compulsory license system for the case where agreement fails.
3. Overview of the Amendment
(1) Review of provisions on the restriction of rights* related to libraries
*Provisions on the restriction of rights: provisions that specify exceptional cases in which a work may be exploited without the authorization of its copyright owner by restricting the copyright owner's rights.
(i) Transmission via the internet of rare or out-of-print materials by the National Diet Library for individuals [Re: Article 31, paragraph (4) (Article 31, paragraph (8) after the amendment by Article 2 of the Amendment Act), etc.]
Under Article 31, paragraph (3) before the amendment, the NDL was able to transmit data of a digitized rare or out-of-print material (a material that is difficult to obtain through normal trade channels because it is out of print or for a similar reason) to another library or similar facility via the internet, without the authorization of the right holder, and that library or similar facility was able to reproduce a part of that material and make it available to users.
In this regard, former Article 31, paragraph (3) only allowed the NDL to transmit data of a rare or out-of-print material to another library or similar facility, so the people could not access that data unless they visited the library or similar facility Thus, there was a problem that the people faced difficulty accessing the rare or out-of-print material in a case where the library or similar facility is closed due to a measure against infectious diseases or the like, a case where a person cannot visit the library or similar facility due to illness or disabilities, etc., or a case where a person has no physical access to a library or similar facility, such as having no library or similar facility in the neighborhood.
Accordingly, a revision was made so that a rare or out-of-print material, which conventionally could only be transmitted by the NDL to another library or similar facility and be inspected and copied by a user who physically visited the library or similar facility, can be transmitted via the internet by the NDL directly to users under certain requirements, without the authorization of the right holder. In this case, a user is permitted to [i] reproduce (print out) the material that has been transmitted via the internet to the extent that this is found to be necessary for the user to use it personally; and [ii] publicly communicate the material that has been transmitted via the internet by using a display or the like under requirements including a non-commercial purpose and free of charge.
(ii) Public transmission of a library material by a library or similar facility [Re: Article 31, paragraph (2)]
Under Article 31, paragraph (1) (item (i)) before the amendment, the NDL or a library or similar facility, such as a public library or a university library, could, as part of its non-commercial undertakings, reproduce a library material and make it available without the authorization of the right holder, in response to the request of a user who conducts research or studies, only in the case of providing a single user with a single copy of a part of a work that has been made public.
In this regard, former Article 31, paragraph (1) only permitted reproduction and provision of a copy (transfer), and a library or similar facility could not transmit a library material by facsimile or email (public transmission) to users. Therefore, there was a problem that the people's access to information had not been sufficiently secured in light of the advancement of digital and network technology, such as taking a long time to acquire a copy of a material.
Accordingly, a revision was made so that a copy of a library material, which conventionally could only be provided in paper format, can be publicly transmitted without the authorization of the right holder. However, because a measure to enable the people to acquire and inspect a copy of a material in an easy, speedy, and convenient manner at places other than a library or similar facility has a large impact on right holders, the measures in [i] to [iv] below are taken to protect the right holders.
[i] The transmitter is limited to a "specified library or similar facility" [Re: Article 31, paragraph (3)]
The library or similar facility, which will be the transmitter, is limited to the "library or similar facility" provided in Article 31, paragraph (1) that has appropriate personnel and physical control frameworks for preventing the use of data for a purpose other than the intended purpose (a specified library or similar facility).
[ii] Measures to prevent or deter illegal spreading of data [Re: Article 31, paragraph (2), item (ii)]
In order to ensure that a user who receives public transmission does not spread the data illegally, a library or similar facility is required to take measures to prevent or deter illegal spreading of data when transmitting the data.
[iii] Limitation of "if the relevant action would unreasonably prejudice the interests of the copyright owner" (prevention of competition with the regular market) [Re: proviso to Article 31, paragraph (2)]
In order to ensure that the introduced public transmission would not inhibit the regular market of electronic distribution services and unreasonably prejudice the interests of right holders, Article 31, paragraph (2) provides for a proviso stating that public transmission cannot be made "if the relevant action would unreasonably prejudice the interests of the copyright owner in light of the nature of the work ..., the purpose of the work, or the circumstances of the transmission to the public made by the specified library or similar facility."
[iv] Obligation to pay compensation [Re: Article 31, paragraph (5)]
From the viewpoint of compensating for the disadvantage suffered by right holders in line with the implementation of the transmission service, a person that establishes a library or similar facility must pay a certain amount of compensation to the right holder (the actual burden of compensation is basically assumed to be borne by the user of the library or similar facility, who is the beneficiary of the service.).
(2) Facilitation of processing of rights for simultaneous distribution of broadcast programs on the internet
(0) Definition of the "simultaneous broadcast distribution" subject to this measure
The distribution subject to this measure is simultaneous distribution, start-over TV, and time-limited catch-up TV of a broadcast program or cablecast program.
In more detail, the "simultaneous broadcast distribution" subject to the introduced measure is defined as automatic public transmission of a broadcast program or cablecast program (hereinafter simply referred to as a "broadcast program") that satisfies the following requirements:
[i] The automatic public transmission is made within one week from the day on which the broadcasting of the broadcast program or the cablecasting of the cablecast program takes place (if the interval is longer than one week, within a period specified by the Commissioner of the Agency for Cultural Affairs not exceeding one month, depending on that interval).
[ii] The automatic public transmission is made without changing the content of the broadcast program.
[iii] The automatic public transmission is subject to measures to prevent or deter downloading of the broadcast program.
A service that unreasonably prejudices the interests of the right holder, etc. may be excluded by the Commissioner of the Agency for Cultural Affairs in consultation with the Minister for Internal Affairs and Communications.
(i) Expansion of provisions on the restriction of rights [Re: Article 34, paragraph (1)]
Some of the former provisions on the restriction of rights covered broadcasting, such as broadcasting of school education programs and exploitation of speeches at the Diet, etc., in light of the public interest nature of broadcasting. In the amendment, simultaneous broadcast distribution was also made subject to those provisions on the restriction of rights, as it is a form of exploitation that can be regarded as the same as broadcasting. Specifically, all provisions on the restriction of rights concerning broadcasting (Article 34, paragraph (1), Article 38, paragraph (3), Article 39, paragraph (1), Article 40, paragraph (2), Article 44, and Article 93) were also made applicable to simultaneous broadcast distribution.
Meanwhile, as Article 38, paragraph (3) is a provision that allows communication to the public in a wide variety of forms and is expected to have a particularly large impact on right holders, it covers "simultaneous distribution" and "start-over TV" (it does not cover "catch-up TV").
(ii) Creation of provisions on presumption of authorization [Re: Article 63, paragraph (5)]
While a wide variety of and a large amount of works, etc. are exploited in a broadcast program or cablecast program, if the time until the broadcasting or simultaneous broadcast distribution is limited, it is assumed to be considerably difficult for the broadcaster to conclude a contract with all relevant right holders after clarifying the extent of exploitation. As a result, even if a right holder was privately willing to authorize simultaneous broadcast distribution, there is a risk that the part of the program involving that right holder's copyright would be replaced by a still image or the like during the simultaneous broadcast distribution due to a lack of clear authorization.
Therefore, in order to enable one-stop processing of rights for broadcasting and simultaneous broadcast distribution, it is provided that, if a person that may authorize another person to broadcast or cablecast a work or transmit a work via simultaneous broadcast distribution has authorized a broadcaster that undertakes simultaneous broadcast distribution in the course of trade, and, as a measure to publicize this fact, discloses by a method specified by the Commissioner, information specified by the Commissioner of the Agency for Cultural Affairs as information concerning the status of implementation of simultaneous broadcast distribution, to exploit the work in broadcast programming, the authorization is presumed to include authorization to transmit the work via simultaneous broadcast distribution, unless the person manifests an intention to the contrary upon granting the authorization.
(iii) Facilitation of exploitation of phonograms and phonogram performances [Re: Articles 94-3 and 96-3]
Under the Copyright Act before the amendment, authorization in advance was not required for exploitation of a phonogram or phonogram performance in broadcasting, but was required for making its distribution. In this regard, if the rights are placed under centralized management by a copyright management service provider, for example, authorization can be obtained smoothly, but if not, it will be difficult to smoothly obtain authorization and there will be a risk that a phonogram or phonogram performance used in broadcasting cannot be used in simultaneous broadcast distribution.
Accordingly, it is provided that a broadcaster may transmit via simultaneous broadcast distribution a performance whose sound has been recorded onto a commercial phonogram or undertake simultaneous broadcast distribution using a commercial phonogram, by paying compensation in an amount equivalent to the ordinary rate of royalties, excluding performances and phonograms for which a copyright management service provider manages the right, or excluding cases in which information on the right holder has been disclosed by a method specified by the Commissioner of the Agency for Cultural Affairs.
(iv) Facilitation of exploitation of video performances [Re: Articles 93-3 and 94]
With regard to a video performance, authorization is required both in the case of exploiting it in broadcasting and the case of exploiting it in simultaneous broadcast distribution. For broadcasting, however, there are special provisions stipulating that, if authorization for exploitation in the first broadcasting has been obtained, broadcasters do not need to obtain the authorization for exploitation in the rebroadcasting, unless otherwise stipulated in a contract. In this regard, with regard to exploitation in simultaneous broadcast distribution, if the rights for exploitation are placed under centralized management by a copyright management service provider, authorization can be obtained smoothly, but if not, it will be difficult to smoothly obtain authorization and there will be a risk that the video performance to be rebroadcast cannot be transmitted via simultaneous broadcast distribution.
Accordingly, as a similar measure as that under Article 94 before the amendment (amended Article 93-2), it is provided that if a performer authorizes the first simultaneous broadcast distribution of a video performance, the video performance may be exploited without authorization in advance by paying remuneration in an amount equivalent to the ordinary rate of royalties, unless otherwise stipulated in a contract, excluding a performance that is managed by a copyright management service provider and excluding cases in which information on the right holder has been disclosed by a method specified by the Commissioner of the Agency for Cultural Affairs (amended Article 93-3 of the Act).
If authorization for first simultaneous broadcast distribution has not been obtained and time has elapsed from the first broadcasting, there can be a case where the broadcaster is no longer able to contact the right holder. Therefore, also in the case where authorization for the first simultaneous broadcast distribution has not been obtained, if the broadcaster is unable to contact a performer even after taking certain measures, the broadcaster may, unless otherwise stipulated in a contract, transmit the performance via simultaneous broadcast distribution without obtaining authorization in advance, by paying compensation in an amount equivalent to the ordinary rate of royalties to the copyright management service provider designated by the Commissioner of the Agency for Cultural Affairs in advance (amended Article 94 of the Act).
(v) Expansion of the compulsory license system for the case where agreement fails [Re: Article 68]
Article 68 before the amendment provided, in light of the public nature of broadcasting, that if a broadcaster intending to exploit a work in broadcasting requests the right holder to agree to give authorization, but an agreement cannot be reached, the broadcaster may broadcast the work pursuant to a compulsory license by the Commissioner of the Agency for Cultural Affairs, after paying a certain amount of compensation.
With regard to this compulsory license system, the scope of acts covered by the system was expanded so that a broadcaster may use the system even if the agreement concerning simultaneous broadcast distribution of a work fails.
