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Regarding the Act to Adjust Related Acts to Coordinate with the Conclusion of the Trans-Pacific Partnership Agreement (Act No. 108 of 2016) and the Act to Adjust Related Acts to Coordinate with the Conclusion of the Trans-Pacific Partnership Agreement and the Conclusion of the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (Act No. 70 of 2018)

1. Introduction

In October 2015, 12 nations reached a general agreement on concluding the Trans-Pacific Partnership (hereinafter, “TPP”), and they signed the agreement in February 2016. After this, the Act to Adjust Related Acts to Coordinate with the Conclusion of the Trans-Pacific Partnership Agreement (hereinafter, “TPP adjustment Act”) was passed on December 9, 2016 by the 192nd Diet and promulgated as Act No. 108 of 2016 on December 16, 2016.

The TPP adjustment Act contained revisions to 11 laws including the Copyright Act which, aside from some exceptions, were to go into effect on the day the TPP entered into force in Japan.

Later, in January 2017, the United States announced its withdrawal from TPP, so the remaining 11 countries pursued negotiations which resulted in the signing of the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (hereinafter, “CPTPP”) on March 8, 2018. After this, Act for Partial Amendment of the Act to adjust Related Acts to Coordinate with the Conclusion of the Trans-Pacific Partnership Agreement (hereinafter, “CPTPP adjustment Act”) was passed on June 29, 2018 by the 196th Diet and promulgated as Act No. 70 of 2018 on July 6, 2018.

Under the CPTPP adjustment Act, the TPP adjustment Act was renamed the Act to Adjust Related Acts to Coordinate with the Conclusion of the Trans-Pacific Partnership Agreement and the Conclusion of the Comprehensive and Progressive Agreement for Trans-Pacific Partnership, and the date of enforcement for the TPP adjustment Act was revised so the law would go into effect, in principle, on the day CPTPP entered into force in Japan.

With the promulgation of the CPTPP adjustment Act, the scheduled revisions to the Copyright Act were to go into effect on the day* the CPTPP went into effect in Japan.

On July 6, 2018, the Government of Japan notified New Zealand, the Depositary for the agreement, that it had concluded domestic procedures pertaining to CPTPP, and On October 31, 2018, Australia became the sixth country to notify New Zealand that it had concluded domestic procedures pertaining to CPTPP. Having been ratified by six countries, the CPTPP entered into force on December 30, 2018, and the scheduled revisions to the Copyright Act set forth in the TPP adjustment Act went into effect on the same day.

* “This Agreement shall enter into force 60 days after the date on which at least six or at least 50 per cent of the number of signatories to this Agreement, whichever is smaller, have notified the Depositary in writing of the completion of their applicable legal procedures.” (CPTPP, Article 3)

[Law]

* Revised TPP adjustment Act after enactment of the CPTPP adjustment Act (Sections pertaining to the Copyright Act)

* Please refer to the homepage of the Cabinet Secretariat's Governmental Headquarters for the Trans-Pacific Partnership (link below) for more information on the CPTPP adjustment Act (e.g., summary, articles, and comparison table), TPP, and CPTPP.
https://www.cas.go.jp/jp/tpp/index.html (Japanese only)

Reference Documents

2. Aims of the Revisions

TPP is a comprehensive trade agreement established with the participation of 12 countries* in the Asia-Pacific region. It aims to create new rules for trade in the 21st century by promoting the liberalization not only of tariffs on goods but also on services and investments, and it covers a wide range of fields including e-commerce, rules for state-owned enterprises, the environment, and intellectual property including copyrights. The chapter on intellectual property was formulated based on the overarching policy for the entire TPP, and it stipulates proper protections for rights, provisions for the exercise of rights in civil and criminal procedures, border measures, and so on for intellectual property rights such as copyrights, trademarks, patents, and geographical indications.

Based on the provisions for copyrights agreed to under TPP, efforts will be made to properly protect copyrights and other rights in the member countries, and these rights can be expected to be effectively and stably exercised. In Japan, many of these provisions pertaining to copyrights have already been adopted into law. On the other hand, the Government of Japan will need to review its systems with respect to some rights.

With regard to the revisions to the Copyright Act under the TPP Development Act, in preparation for the conclusion of TPP, it was agreed that provisions would be established for the following five items in line with the “Report on the Policy for the Improvement of Systems Concurrent with the Trans-Pacific Partnership (TPP)” compiled in February 2016 by the Subcommittee on Legislation and Basic Issues of the Copyright Subdivision of the Council for Cultural Affairs.

(1) Extension of the term of protection for copyrighted works

(2) Introduction of an ex officio prosecution provision for some copyright infringement cases

(3) Establishment of systems concerning effective technological measures for the management of copyright use (measures to prevent circumvention of access controls)

(4) Granting of rights to request usage fees for the secondary use of phonograms made available for transmissions

(5) Review of regulations pertaining to compensation for damages

Later, after the United States announced its withdrawal from TPP, as mentioned earlier, the CPTPP adjustment Act, which served primarily to revise the name and date of enforcement of the TPP adjustment Act, was promulgated and went into effect. In light of this, the aforementioned five revisions to the Copyright Act were set to go into effect on the date that CPTPP entered into force.

* Australia, Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, the United States, and Vietnam

3.Overview of Revisions

(1) Extension of the term of protection for copyrighted works (pertaining to Article 51, Paragraph 2; Article 52, Paragraph 1; Article 53, Paragraph 1; Article 101, Paragraph 2, Items 1 & 2)

In the previous Copyright Act, the end date for the term of protection for copyrighted works was set at 50 years after the death of the author, in principle (or 70 years after release for copyrighted films), and the term was also set at 50 years for performances and phonograms, each counted from its respective starting point. With these revisions, however, the end date for the term of protection for copyrighted works, performances, and phonograms will all be 70 years, each counted from its respective starting point.

(2) Introduction of an ex officio prosecution provision for some copyright infringement cases (pertaining to Article 123, Paragraphs 2 & 3)

In the previous Copyright Act, acts of copyright infringement were subject to criminal penalty, but these were offenses subject to prosecution only upon complaint, that is, they could not be prosecuted without a petition from the copyright holder or other relevant party. With these revisions, however, cases of copyright infringement can be prosecuted without the filing of a complaint by the copyright holder or other relevant party as long as they satisfy all of the following conditions:

(1) The offender intends to earn financial benefits from the act of infringement or intends to undermine the profits that the copyright holder is expected to earn by selling (or engaging in other such activity concerning) said copyright holder’s for-profit copyrighted works (e.g., copyrighted works that the copyright holder has provided or presented to the public for a fee);

(2) The offender has infringed on the copyright holder’s copyright by publicly transferring or transmitting said fee-based works “as is,” or the offender has infringed on the copyright holder’s copyright by reproducing said fee-based work for the sake of public transfer or transmission;

(3) The profits that the copyright holder was expected to earn from the provision or presentation of his or her fee-based works have been “unfairly harmed.”

Based on this, looking at derivative works such as dojinshi (self-published comics) in the comic market, for example, these are deemed as not unfairly harming the profits of the copyright holder because they do not typically use copyrighted works as is, nor do they compete in the open market with the original work. When viewed in light of the three conditions above, these can be considered as not constituting offenses that fall under the ex officio prosecution provision; however, actions such as selling pirate versions of comics and novels that are currently on sale and distributing pirate versions of movies online can be considered as constituting offenses that fall under the ex officio prosecution provision.

(3) Establishment of systems concerning effective technological measures for the management of copyright use (measures to prevent circumvention of access controls) (pertaining to Article 2, Paragraph 1, Item 21; Article 113, Paragraph 3; Article 119, Paragraph 1; Article 120-2, Paragraph 1, Items 1 & 2)

In the previous Copyright Act, protective technologies that only functioned to control access were not considered technological protection measures. With these revisions, however, in addition to the aforementioned technological protection measures, protective technologies that only function to control access have been defined as “technological exploitation restriction measures,” and the act of circumventing these technological exploitation restriction measures without proper authorization shall be considered equivalent to copyright infringement, excluding cases in which the profits of the copyright holder are not unfairly harmed, and shall be subject to civil liability. Also, the act of publicly transferring or transmitting devices or programs for the circumvention of technological exploitation restriction measures will be subject to criminal penalty.

(4) Granting of rights to secondary use fee of phonograms made available for transmissions (pertaining to Article 95, Paragraph 1)

In the previous Copyright Act, performers and producers of phonograms possessed the right to request secondary usage fees from entities who used commercial-use phonograms (reproductions of manufactured phonograms to be sold on the market) for broadcasts or cablecasts, but the right to request secondary usage fees did not arise when an entity used phonograms through online music distribution directly, via the internet or otherwise, without using CDs or other commercial-use phonograms (i.e., “phonograms made available for transmissions”) for broadcasts and cablecasts. With these revisions, however, performers and producers of phonograms will be granted the right to secondary use fee of phonograms made available for transmissions, in the same manner that they can for commercial-use phonograms.

(5) Review of regulations pertaining to compensation for damages (pertaining to Article 114, Paragraph 4)

To reduce the burden of proof when requesting compensation for damages for copyright infringement, in addition to the current stipulations, if the infringed copyright is managed by a copyright management organization, the copyright holder will be able to request compensation for damages for an amount calculated based on the copyright management organization’s royalty rules.

(6) Date of Enforcement

As mentioned earlier, these revised items are set to go into effect on the day* CPTPP goes into force in Japan.

* “This Agreement shall enter into force 60 days after the date on which at least six or at least 50 per cent of the number of signatories to this Agreement, whichever is smaller, have notified the Depositary in writing of the completion of their applicable legal procedures.” (CPTPP, Article 3) On October 31, 2018, six countries (Mexico, Japan, Singapore, New Zealand, Canada, and Australia) concluded domestic procedures and notified New Zealand, the Depositary for the agreement. Having been ratified by six countries, the CPTPP entered into force on December 30, 2018.

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