Does the Japanese Copyright Act Need Fair Use in Order to Embrace Parody?

 

Introduction:

 

Reflecting the need of adjustment to make the U.S. version fair use[1] compatible with the Japanese legal system, the phrase “Nihon-ban fair use,” or “Japanese version fair use” was first introduced by Professor Tatsuhiro Ueno of Waseda University and soon became a slogan in discussions among legal scholars, lawmakers, the media, creative community, and internet user groups.[2] The concept gained even more recognition when the United States-led Trans-Pacific Partnership (TPP) free trade negotiation came into consideration for the Japanese Government under the Prime Minister Naoto Kan in 2010.

 

On June 29, 2013, Creative Commons Japan[3] held a symposium titled “How Japan should negotiate the TPP – Will introduction of “70 years after author’s death” and “Prosecution without copyright holder’s complaint” enrich culture and strengthen the economy of Japan?” A report of the symposium states that Japan had incurred a deficit of about 580 billion yen (ca. 5.8 billion U.S. dollars) in international copyright payment in 2011, most of Japan’s payments being to the US, while the United States earned about 9.6 trillion yen (ca. 96 billion U.S. dollars) from copyright payments.[4]

 

As Kensaku Fukui, one of the panelists at the symposium and a leading intellectual property attorney in Japan, pointed out, adopting more protection for the rights of copyright holders under the current Japanese copyright law will not only increase the ongoing economic unbalance between the two countries in terms of royalty payments, but also have adverse effects for Japan’s culture and economy.[5]

 

This paper will examine whether, in light of the TPP negotiations, Japan needs to adopt a long-debated fair use provision, and if so, what form of a fair use provision it should adopt, in order to achieve the purpose of its Copyright Act, which is “to provide for, and to secure protection of, the rights of authors, etc. and the rights neighboring thereto with respect [copyrightable] works as well as performances, phonograms, broadcasts and wire-broadcasts, while giving due regard to the fair exploitation of these cultural products, and by doing so, to contribute to the development of culture.”[6] I will look at the concept of “parody” as a key element in development of the Japanese culture. Although the prevalence of parody of copyrightable material has been customarily tolerated, or even encouraged, the Japanese copyright law has not recognized parody as a permissive use of copyrightable material.

 

I will first discuss the expected impact of the Trans-Pacific Partnership agreement and 2012 amendments to the Japanese Copyright Act, which, on the one hand, created new specific exceptions to copyright, while, on the other hand, criminalized downloads of copyrighted material that has been illegally uploaded, even when for private use.[7] I will then discuss whether any copyright enforcement beyond the current degree of implementation will adversely affect development of culture and economy of Japan where promotion of creativity and culture owes to rather relaxed ideas of copyright.[8] These ideas are quite different from American ideas about copyright, which presume that the right to exploit the economic advantages of copyright motivates individuals to be productive.[9] I will use the industry of fan-created derivative works of manga (comics) and anime (animation), such as dojinshi (fan fiction, fanzines), kosupure (costume play, or performance art in which participants wear costumes representing certain characters), figyua (figures of characters), and komike/komiket (comic market, or manga convention organized by fans) as a case study[10] as this industry, which is built on countless transformative works of original works mainly in the form of parody, frequently features in discussions concerning whether to adopt the U.S. version fair use for the Japanese Copyright Act in order to recognize the permissible use of parody.[11]

 

Finally, I will argue that it is important to recognize that national copyright law might have culture-specific conditions and international standard of copyright law should not work to compromise local creativity and productivity. As uniformity of copyright protection across borders is being sought, fair use concept seems to leave flexible understanding regarding how copyright is perceived in each country.  Japan should promptly adopt a provision of fair use into its Copyright Act in order to achieve the objective of the concept of copyright, namely to stimulate productive thought and public instruction without excessively diminishing the incentives for creativity.[12] I will examine an appropriate form of the fair use provision for the Japanese Copyright Act by addressing major concerns about the adoption of the U.S. version of fair use provision, including discussions on incompatibility with international law, Japan’s civil law system and legal culture, and advantages of an enumerated specific provision over a general provision. Inevitably, productivity and creativity in today’s fast-developing digital network environment requires flexibility and quick response of legislation, which is not a characteristic of a civil law system. Rather than enacting a series of specific provisions that permits parody, Japan should adopt a general provision that could, when appropriate, embrace certain creations of transformative works as permissible in order to reflect the implication that expression by individuals is an integral part of collective cultural assets.[13]

 

 

I. The Leaked TPP Intellectual Property Chapter Draft

 

On March 15, 2013, Japanese Prime Minister Shinzo Abe announced that Japan would participate in the Trans-Pacific Partnership (TPP) negotiations, making the 12th participating country.[14] The TPP or the Trans-Pacific Partnership, a United States-led free trade agreement in the Asia-Pacific region currently under negotiation among the U.S., Brunei, Chile, New Zealand, Singapore, Australia, Peru, Vietnam, Malaysia, Mexico, Canada, and Japan, will include a chapter on intellectual property regulations along with a wide range of other issues such as elimination of tariffs, cross-border financial services, labor rights protection, telecommunications, and the environment. According to the outline published by the Office of the United States Trade Representative, the TPP countries will “reinforce and develop existing World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property (TRIPS) rights and obligations to ensure an effective and balanced approach to intellectual property rights among the TPP countries […] including trademarks, geographical indications, copyright and related rights, patents, trade secrets, data required for the approval of certain regulated products, as well as intellectual property enforcement and genetic resources and traditional knowledge.”[15]

 

The draft text for the intellectual property chapter tabled by the United States in the February 2011 round in Santiago, Chile, as well as text on copyright limitations and exceptions proposed by the U.S. in the July 2012 round in San Diego were both leaked.[16] The leaked text revealed that the US would seek to impose high standards on the TPP countries regarding intellectual property rights protection, which are more restrictive than current international standards and even beyond the current U.S. laws.[17] In the area of copyright, specifically when adopted by Japan, the leaked proposal would mean to impose following changes to the Japanese copyright laws: 1) copyright holders shall be given the right to prohibit parallel importation (importation of a non-counterfeit product from another country without the permission of the intellectual property owner) of their works (Article 4.2); 2) the term of protection of a work, performance, or phonogram shall be extended by 20 years, from the current 50 years after the author’s death to 70 years (Article 4.5); 3) instead of the current remedy of compensating for the actual damages caused by the infringement, pre-established damages shall be implemented to make it sufficiently high to constitute a deterrence to future infringements and compensate fully the right holder for the harm (Article 12.4); 4) authorities may initiate legal action ex officio without the need for a formal complaint by a private party or right holder (Article 15.5(g)); and 5) the U.S.-standard of duty of service providers should be adopted and implemented, including so-called “notice-and-takedown” approach[18] and “three strike” approach (Article 16.3).[19] In addition to these modifications, United States-Japan Economic Harmonization Initiative suggests that the U.S. seeks that the private use exception of Article 30 of the Japanese Copyright Act shall not apply to downloads from an illegal source for ALL copyrightable works.[20]

 

II. Amendments to the Japanese Copyright Act in 2012

 

In the meantime, as a response to the heated debate concerning the threat of the TPP and need for a fair use provision, on one hand, and as the Japanese Government’s preparation for the TPP’s high-standard of copyright enforcement, on the other, following amendments to the Copyright Act were passed by the Diet in 2012: the one group of amendments serves the purpose of facilitating the use of copyrighted materials, while the other the purpose of securing more protection for copyright holders.[21] This generated a huge disappointment among the advocates of a general provision concerning fair use, calling the amendments “without a glimmer of fair use.”[22]

 

Firstly, instead of adopting a fair use general provision, five specific provisions concerning so-called “incidental involvement (Utsurikomi)” of copyrighted material were passed to add some more enumerated exceptions to copyright protection. According to the amendments, the following uses do not constitute a copyright infringement:

 

(1) Article 30-2(1): the duplication or adoption of copyrighted material if such material is involved as an incidental object or sound which is difficult to split off from other subjects; provided that the duplication or adaptation is made in the form of photographing, sound recording or video recording;

(2) Article 30-2(2): the use of the duplicated or adapted material made in the cases above;

(3) Article 30-3: the use of copyrighted material to the extent necessary for the process of considering obtaining a license from the copyright owners;

(4) Article 30-4: the use of copyrighted material that has been published, to the extent necessary for tests conducted                                                                                                                                                                                                                                                                                      to develop or put into practical use of sound/video recording technologies; and

(5) Article 47-9: the recording or adaptation of copyrighted material to the extent necessary to prepare for streamlining of computer processing of the copyrighted material when such data will be provided through networks.

 

At the same time, two amendments were passed to strengthen copyright protection, one of which being Article 119-3 that criminalizes illegal downloads. Copyright infringement, when deemed intentional, had already been subject to criminal prosecution in Japan under Article 119, which makes an infringer to be subject to imprisonment up to ten years and a fine up to 1 million yen (ca. $10,000). Currently, prosecution requires a formal complaint from a copyright holder allegedly harmed by the infringement. [23] This requirement, however, may be removed in the near future since authorities will become able to initiate legal actions without a formal complaint by the copyright holder if the above-stated Article 15.5(g) of the TPP draft text that eliminates such requirement were to be put in force.

 

Newly enacted Article 119-3 provides punitive sanctions for knowingly downloading copyrighted material that is offered for compensation and has been uploaded illegally, even when downloaded for private use. The new sanctions impose two years imprisonment and/or a maximum fine of 2 million yen (ca. $20,000). In addition to these sanctions, if the infringer’s act is related to his/her employment, the corporation that employs the infringer will be fined up to 300 million yen (ca. $3 million) under Article 124.[24]

 

The other amendment enacted to facilitate copyright protection is Article 2-1 (2), which makes the duplication of copyrighted material by circumventing encryption technology (such as the CSS used for DVDs and the AACS for Blue-ray) a copyright infringement, even if the duplication is for private use. Circumvention of copyright protection functions, such as SCMS used for music CDs, had already been deemed to be a copyright infringement.

 

III. Current Exceptions and Limitations under the Japanese Copyright Act: Transformation of Article 30 and Elements of Article 32

 

Doesn’t the Japanese Copyright Act under the current exceptions and limitations recognize the U.S. fair use-like concept that permits certain transformative works, such as parody, at all?

 

Along with the 2012 amendments, the Copyright Act enumerates several limitations and exceptions on copyright including: reproduction for private use; reproduction in libraries, quotation privileges; use for educational purposes; performances for non-profit purposes; use for news reports; use in political speeches; reproduction in judicial proceedings; exhibition of artistic works by the owner; and use of artistic works located in public spaces.[25]

 

Some of the key concepts of fair use are mentioned in Article 30, which sets forth permissible reproduction of copyrightable material for private use, and Article 32, which gives quotation privileges in certain cases.

 

Historically, reproduction of copyrightable material for private use (“personal use, family use, or other equivalent uses”[26]), if the person who reproduces the copyrightable material uses it, was altogether considered to be within the scope of limitation on copyright protection under the Article 30 (enacted in 1970). The scope of the limitation, however, has been narrowed down over the years – the last one being criminalization of illegal downloads for private use.[27] Reasons for this trend may be the development of more sophisticated reproduction devices and the progress of digitalization and information networking that has been blurring the border between public sphere and private sphere, and between commercial use and private use.[28] Unlike the U.S. fair use element of purpose and character of use (commercial, or direct benefit to infringer/noncommercial, or benefit to public at large[29]) consideration, Article 30 provides exception strictly for a private use that occurs in a private sphere.

 

The other provision is Article 32, which states: It shall be permissible to quote from and thereby exploit a work already made public, provided that such quotation is compatible with fair practice and to the extent justified by the purpose of the quotation, such as news reporting, critique or research.

 

Although there are some discussions about whether this provision could be interpreted as a more flexible guideline that could comprehend a use of copyrightable material that is outside the definition of a quotation, the reigning theory based on the Japanese Supreme Court’s decision in the Parody-Montage Case[30] is that this Article is read very narrowly. [Summary of the case[31]]

The Supreme Court reversed the lower court’s decision that the use was parody and permissible under Article 21(1) of the Japanese Constitution, which guarantees freedom of expression. The Supreme Court held that Article 32 applies only when the following two elements of “quotation” are satisfied: 1) a clear separation exists between the copyrighted work and the using work; and 2) the using work must be the major part, and the copyrighted work a minor part. This case, the Court held, was not a quotation but a modification, which infringes the author’s moral rights of integrity.[32] Article 32 also requires a clear indication of source set forth in Article 48.

 

In sum, under the Japanese Copyright law, there is no provision that considers whether a transformative work, such as parody, is a permissible use of a copyrightable material, and unless an activity of using a copyrightable material strictly fits under the definitions of the specific provisions, it is held to be a copyright infringement.[33]  

 

III. Productivity and Creativity in the Sphere Where Copyright is Not Enforced: Fan-Based Activities Around the Manga/Anime Industry

 

A. Markets around Fan-Created Activities

The domestic market size for manga/anime industry is about 400 billion yen (ca. $4 billion), which includes $553 million for doujinshi market, $360 million for cosupure, $260 million for figua, $250 million for e-comics.[34] This is comparable with the market size for movie industry ($5.3 billion) and for music industry ($4 billion) in Japan.[35]

 

Doujinshi (fan fiction or fanzines), a term traditionally used to refer to publications of literary works such as poetry and short stories for distribution within a certain association or society, today rather refers to fan-created works that use manga or anime characters from popular series.[36] As one can imagine from the market size, most of doujinshi today is not noncommercial. While bookstores officially carry some them these days, the biggest opportunity for the creators to sell their works is provided by “Komike/Komiket” or “Doujinshi sokubaikai” (“short-duration spot markets for the sale of doujinshi”[37]). Komike started to emerge in the 1970s, and the largest of them, the biannual Tokyo Komike that last for three days at the biggest exhibition hall in Japan attracts as much as 590,000 people (participating sellers and attendees) and generates the total dollar sales of more than $15 million per day, excluding the price of the catalog guide of the event sold for $10 by the organizer (there is no entrance fee for attendees, but virtually every attendee must purchase the catalog in order to navigate him/herself in the overcrowded hall.[38] Participating sellers are not only individual fan creators, but also professional publishers that cannot ignore the contribution of those events to the market. Last month, Walt Disney Japan announced that it would participate in the Komiket to be held this coming December.[39]

 

Similar creation of spot markets occurred for the market of kosupure and figua. Also, the market of user-generated content (UGC) on the internet, such as Hatsune Miku[40] phenomenon, presents also similar situation.

 

Large part of fan-based activities, such as doujinshi, is based on parody, which is considered to be an infringement of a copyrightable material when the use lacks the copyright holder’s consent. The use of the copyrightable material for doujinshi is normally beyond the private use in private sphere. Although the many of the fan-based activities serve as prime example of infringing activities, they not only provide a public benefit, but may also bolster, rather than degrade the creative and economic interests of the copyright holder,[41] as “the proselytizing function of fan activities.”[42] This recognition should “go beyond mere largesse or indifference on the part of the copyright holder.”[43] Instead, it should be considered in the analysis of the industry’s use of copyrightable material.

 

B. Once the TPP takes effect, the industry will be threatened by enforcement of copyright protection as well as by the chilling effect of criminalization

 

Some examples of manga/amine industry’s own regulatory scheme:

Š      Utilize the copyright license system proposed by Creative Commons (modifying default “All rights reserved” to “Some rights reserved)

Š      “License of the day” system, gradually established in the 1980s by the then-organizer of Wonder Festival, General Products, in order for participants in the convention to receive merchandising license from copyright holders only during the event at the venue.

 

Fan-based activities have been left legally unrestricted in a gray zone. Assuming that Japan agrees with the current U.S.’s TPP proposal, as Korea did when signing a Free Trade Agreement with the US in March 2012, the requirements of stricter copyright enforcement would threaten the existence of the industries supported by fan-based activities. As stated above, the U.S.’s TPP proposal asks the signatory countries to enforce prosecutions without formal complaint of a copyright holder.

 

Additional negative factors specific to Japanese law

1.     So-called Karaoke Doctrine’s application has been extended.[44] The doctrine derives from the Club Cat’s Eye case, where the Supreme Court held that the owner of a Karaoke bar should be liable for direct infringement of the copyright holder’s right of performance, although the owner of the bar did not commit a direct infringement. The doctrine is applicable when an operator controls facilities where occupants infringe copyright.[45] Spot market organizers could be held liable for direct infringement.

2.     The Japanese Copyright Act and Penal Code take nationality (personality) principle, rather than territoriality principle.[46] In theory, criminalization is applicable to Japanese citizens who commit infringing conduct under the Japanese Copyright Act outside Japan, even though such conduct may be permissible under the copyright law of the country where he/she is located.

3.     Chilling effect of criminalization[47]

 

 

C. Copyright as Cultural Property

 

In Japan, unlike in Europe, where individual propriety interests played a direct role in the recognition of copyright theory, the copyright law in japan “developed in large part, from political stimuli, and the legal recognition was relatively abrupt.”[48] Use of parody has traditionally been prevalent in Japanese culture, as you find in the 12th century literary style of “honka-dori,” where an author copy the first one or two phrases of a poem written by someone else into his/her own poem, for the purpose of making a transformative work.

 

There is a conflict between the copyright law and cultural works in Japan. The conflict, however, was not a visible issue as long as tolerance or even encouragement toward creativity and productivity left the industries to their own regulatory schemes.

 

In the U.S., the purpose of copyright is “[t]o promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”[49] 

 

Wendy J. Gordon states: “Copyright and patent law create ownership rights in intellectual property, with the primary goal of generating monetary incentives for the production of creative works, thereby “promot[ing] the Progress of Science and useful Arts.”[50]

 

Geoffrey R. Scott states: (t)he greatest productivity will likely result if persons are given an incentive to create and it is through the vehicle of individual initiative and goal orientation that the public domain is enriched. The specific incentive that presumes to motivate individuals to be productive is the right to exploit the economic advantages of copyright “for a limited period of time.””[51]

 

Focusing on economic incentive discriminates professional creators from non-professional constituents in the industry. “Copyright excludes nonpurchasers and facilitates consensual transfers between a copyright holder and a purchaser.”[52]

 

This concept does not quite fit if a local copyright law focuses on aspect of copyright being cultural property rather than economic property, and, as in Japan, where culture has emphasis on collectivity, rather than “cultural individualism” in the U.S.[53] In Japan, “the expression of individuals is considered, in large part, an integral part of the group identity and explicitly part of the cultural property and heritage of the country.”[54]

 

As uniformity of copyright protection across borders is being sought, fair use concept seems to leave flexibility regarding how to perceive copyright in each country.  Japan should adopt a provision of fair use into its Copyright Act in order to achieve the objective of the concept of copyright, namely to stimulate productive thought and public instruction without excessively diminishing the incentives for creativity.

 

 

IV. Japanese Version of Fair Use

 

A.     Compatibility of the U.S. fair use with international law

1.     The Berne Convention, an international treaty concerning the standard for copyright law, sets forth criteria for exceptions to exclusive copyright protection.[55] This criteria is known as the Three-Step Test: The US fair use and the Berne Convention Three Step Test are argued to be incompatible, because “special case” under the three-step test is to accommodate the “closed norm” approach rather than “open norm” approach, which permits only clearly enumerated narrow exemptions for specific uses.[56]

2.     However, some international trend of considering a general provision of fair use including the European Copyright Code Chapter 5: Limitations[57]

B.     Japan’s civil law system and less litigious legal culture

1.     Fair use requires case-by-case analysis and does not give a bright-line rule. Japan lacks guideline because there are only a few cases in the past that dealt with the concept of “parody.”

2.     However, recent adoption of combination of the U.S. version of fair use and the Berne Three-Step Test under the Korean civil law system may be consulted as a reference.[58]

C.     Advantages and disadvantages of an enumerated specific provision, a general provision, and statutory interpretation of the existing provision

o   Interpretation or specific provisions are not sufficiently flexible

o   Enumerated consideration points should be included

 

 

Conclusion:

 

Things to consider:

 

Fair Use Economy Represents One-Sixth of U.S. GDP

Sep 12, 2007, WASHINGTON D.C. - Fair Use exceptions to U.S. copyright laws are responsible for more than $4.5 trillion in annual revenue for the United States, according to the findings of an unprecedented economic study released today.

http://web.archive.org/web/20080415213601/www.ccianet.org/artmanager/publish/news/First-Ever_Economic_Study_Calculates_Dollar_Value_of.shtml

 

http://web.archive.org/web/20080410202342/http://www.ccianet.org/artmanager/uploads/1/FairUseStudy-Sep12.pdf

 

Some might argue that abuse of fair use concept and protectionism would harm globalization if not carefully observed/implementation.

 

Danger of abuse of the fair use defense: Authors Guild et al. v. Google

 

 

 

 

 

 

 

 

 

 



[1] 17 U.S.C. § 107 states: Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include— 

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

[2] Tatsuhiro Nakayama, “Reconsidering limitations and exceptions in copyright laws – Possibility of Japanese version fair use,” a lecture for Copyright Research and Information Center (CRIC), September 19, 2007, published in CRIC’s monthly publication “Copyright” December 2007 edition.

[3] Creative Commons is a nonprofit organization that, in order to maximize digital creativity, sharing, and innovation, promotes a copyright license system that enables copyright holders to modify the copyright terms of “All Rights Reserved” to “Some Rights Reserved,” depending on conditions of their choice. http://creativecommons.org/

[4] http://creativecommons.jp/weblog/2013/07/4974/

[5] Id.

[6] Japanese Copyright Act (Chosakuken ho), art. 1 (English translation: http://www.japaneselawtranslation.go.jp/law/detail/?re=02&ky=copyright&page=21&la=01)

[7] Summary of Amendments to the Copyright Act published by the Agency for Cultural Affairs of the Ministry of Education, Culture, Sports, Science and Technology (MEXT) http://www.bunka.go.jp/chosakuken/pdf/24_houkaisei_horitsu_gaiyou_ver6.pdf

[8] Frederik L. Shodt, Dreamland Japan: Writings on Modern Manga (1996) at 42

[9] Geoffrey R. Scott, A Comparative View of Copyright as Cultural Property in Japan and the United States, 20 Temp. Int’l & Comp. L.J. 283, 360

[10] Shodt, supra note 7, Dreamland Japan: Writings on Modern Manga (1996)

[11] The first category of parody considered in the Report of the Parody Working Team of the Agency of Cultural Affairs of the MEXT published in March 2013 was “manga.” http://www.bunka.go.jp/chosakuken/singikai/housei/pdf/h25_03_parody_hokokusho.pdf

[12] Pierre N. Leval, Toward a Fair Use Standard, 103 Harv. L. Rev. 1105, 1110 (1990)

[13] Scott, supra note 8, at 362

[14] Announcement by Prime Minister Shinzo Abe http://www.kantei.go.jp/jp/96_abe/statement/2013/0315kaiken.html

[15] Enhancing trade and investment, supporting jobs, economic growth and development: Outlines of the Trans-Pacific Partnership Agreement http://www.ustr.gov/about-us/press-office/fact-sheets/2011/november/outlines-trans-pacific-partnership-agreement

[16] Trans-Pacific Partnership Intellectual Property Rights Chapter Draft – February 10, 2011 http://keionline.org/sites/default/files/tpp-10feb2011-us-text-ipr-chapter.pdf; 

[17] Knowledge Ecology International comments on inconsistencies between USTR proposal for the TPPA and current US law http://keionline.org/node/1216; 

[18] The Digital Millennium Copyright Act (DMCA) stipulates the notice-and-takedown approach. U.S. 17 USC §512(c)(1)(C). Though Japan has also adopted the notice-and-takedown approach, unlike the US scheme in the DMCA, it provides a chance for a subscriber to explain and reply to claims from copyright holders within seven days before removing infringing material. YiJun Tian, Re-thinking Intellectual Property: The Political of Copyright Protection in the Digital Era, at 194

[19] Supra. Trans-Pacific Partnership Intellectual Property Rights Chapter Draft

[20] US Agenda Items for United States-Japan Economic Harmonization Initiative, February 2011 http://www.ustr.gov/webfm_send/2578

[21] Report on promulgation of the Copyright Act amendments by the 180th Regular Diet Session, 2012. Published by the Agency for Cultural Affairs of the MEXT. http://www.bunka.go.jp/chosakuken/24_houkaisei.html

[22] Minutes of a seminar “Assessment and Problem of 2012 Copyright Act Amendments” at Intellectual Property Law and Policy Institute at Meiji University http://www.kisc.meiji.ac.jp/~ip/_src/20120804/20120804nakayama.pdf

[23] The Copyright Act Art. 123(1) In the case of a crime set forth in Article 119, Article 120-2, items (iii) and (iv), Article 121-2and paragraph (1) of the preceding Article prosecution shall take place only upon the filing of a complaint [by the injured person].

[24] Agency for Cultural Affairs answered some of the concerns regarding the scope of criminalization. For example: “copyrighted material that is offered for compensation” does not include TV programs that are not sold as a DVD or distributed on subscription basis, like On-demand television; merely playing illegally distributed materials on a computer is not subject to criminalization; services where viewing accompanies simultaneous downloading of cache (such as Youtube) is exempted by Article 47-8 (Copying accompanying the use of copyrighted material on a computer). Report on promulgation of the Copyright Act amendments by the 180th Regular Diet Session, 2012. Published by the Agency for Cultural Affairs of the MEXT. http://www.bunka.go.jp/chosakuken/24_houkaisei.html

[25] Japanese Copyright Act, Subsection 5 Limitations on Copyright, art. 30-50

[26] Japanese Copyright Act, art. 30(1)

[27] 1984 Amendment

1992 Amendment

1999/2012 Amendment

2004 Amendment

2009/2012 Amendment

[28] Professor Makoto Kawase, Yokohama National University (former chair of Division for Promotion of Copyrightable Material Distribution under the Agency for Cultural Affairs, “On Illegal Downloading Amendment – considering together with the transformation of Article 30,” a seminar at the Tokyo Bar Association in July, 2013

[29] American Geophysical Union v. Texaco Inc. (2nd Cir. 1994)

[30] Saiko Saibansho [Sup. Ct.] Mar. 28, 1980, Sho 54 (o) no. 923, 415 Hanrei Taimuzu [Hanta] 100, http://www.courts.go.jp/hanrei/pdf/js_20100319121451062181.pdf   

[31] C.f. Summary in English: http://erepository.law.shu.edu/cgi/viewcontent.cgi?article=1045&context=sports_entertainment

[32] Id.

[33] Some argue that “implied consent” is given.

[34] Shukan Daiamondo (Weekly Diamond) September 25, 2010 Issue on Metamorphosis of Akihabara (a city in Tokyo that is the mecca of manga/anime culture), http://knn.typepad.com/knn/2011/05/%E5%B8%82%E5%A0%B44000%E5%84%84%E5%86%86%E3%82%A2%E3%83%8B%E3%83%A1%E3%82%AA%E3%82%BF%E3%82%AF%E6%96%87%E5%8C%96-%E5%9B%BD%E5%86%85%E5%B8%82%E5%A0%B4%E8%A6%8F%E6%A8%A14000%E5%84%84%E5%86%86-%E5%9B%BD%E5%86%85%E5%AE%B6%E5%BA%AD%E7%94%A8%E3%82%B2%E3%83%BC%E3%83%A0%E5%B8%82%E5%A0%B4%E8%A6%8F%E6%A8%A1%E3%81%AF%E7%B4%844936%E5%84%84%E5%86%86.html

[35] Id.

[36] Salil Mehra, Copyright and Comics In Japan: Does Law Explain Why All the Cartoons My Kid Watches Are Japanese Imports?, 55 Rutgers L. Rev. 155, 164

[37] Id.

[38] Id.

[39] http://animeanime.jp/article/2013/10/25/16053.html

[40] Hatsune Miku is “a singing synthesizer application with a humanoid persona, developed by Crypton Future Media” based on Yamaha Corporation’s Vocaloid 2 and 3 singing synthesizing software. http://en.wikipedia.org/wiki/Hatsune_Miku The character became a “hub” for various user-generated creation including songs, drawings, manga, videos, costume designs, and so on.

[41] Nathaniel T. Noda, When Holding on Means Letting Go: Why Fair Use should Extend to Fan-Based Activities, at 67 http://www.law.du.edu/documents/sports-and-entertainment-law-journal/issues/05/Fall2008SELJPublication.Revised2.pdf

[42] Nathaniel T. Noda, Copyrights Retold: How Interpretive Rights Foster Creativity and Justify Fan-Based Activities, 20 Seton Hall J. Sports & Ent. L. 131

[43] Noda, supra

[44] Exceptions to Copyright Protection and the Permitted Uses of Copyright Works in the Hi-tech and digital sectors (2011) https://www.aippi.org/download/commitees/216B/GR216Bjapan.pdf

[45] Id. at 2

[46] Act for Enforcement of the Penal Code 27-1

[47] Geraldine Szott Moohr, The Crime of Copyright Infringement: An Inquiry Based on Morality, Harm, and Criminal Theory

83 B.U. L. Rev. 731

[48] Scott, supra note 8, at 362

[49] The United States Constitution Article I Section 8

[50] Wendy J. Gordon, Fair Use as Market Failure: A Structural and Economic Analysis of the Betamax Case and Its Predecessors, 82 Colum. L. Rev. 1600 (1982)

[51] Scott, supra note 8, at 359

[52] Gordon, supra note 49

[53] Scot, supra note 8, 358

[54] Id.

[55] The Berne Convention Article 9(2) (added in 1971): It shall be a matter for legislation in the countries of the Union to permit the reproduction of such works in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author.

Š      The Three-Step Test: (1) certain special cases which (2) do not conflict with a normal exploitation of the work, and (3) do not unreasonably prejudice the legitimate interests of the author.

 

[56] Richard J. Peltz, Global Warming Trend? The Creeping Indulgence of Fair Use in International Copyright Law, 17 Tex.Intell. Prop. L.J. 267, 273 (2002).

[57] http://www.copyrightcode.eu/index.php?websiteid=3

[58] Article 35-3 (Fair Use of Copyrighted Material):

1. Except for situations enumerated in art. 23 to art. 35-2 and in art. 101-3 to 101-5, provided it does not conflict with a normal exploitation of copyrighted work and does not unreasonably prejudice the legitimate interest of the copyright holder, the copyrighted work may be used, among other things, for reporting, criticism, education, and research.

2. In determining whether art. 35-3(1) above applies to a use of copyrighted work, the following factors must be considered: the purpose and character of the use, including whether such use is of a commercial nature or is of a nonprofit nature; the type or purpose of the copyrighted work; the amount and importance of the portion used in relation to the copyrighted work as a whole; the effect of the use of the copyrighted work upon the current market or the current value of the copyrighted work or on the potential market or the potential value of the copyrighted work.