Guidelines for the Creation of
Web Sites at Schools in Japan: Copyright Implications
Nadine Rosevear
November 6, 2000
Used by permission
Table of Contents
I.
Introduction.
II. An
American school in a Japanese society.
III.
International Treaties and Conventions.
IV. Structure
of Rights in Japanese Copyright Law
V. Works
protected by the Japanese Copyright Law
VI. Special
provisions in Japanese copyright law and the concept of Fair Use.
VII.
Copyright Law and creation of web pages by teachers and students at school
X Specific guidelines
VIII.
Other non-copyright related issues.
Notes.
Bibliography.
I. Introduction
It cannot be doubted that the Internet has become
extremely popular as a means of communication and publication. Due to an ever-growing
multitude of multimedia tools anyone with a computer and a modem can become
a web master and contribute to this vast information network. The ease with
which individuals are able to download other people’s works or upload their
own creations has made exploitation of works beyond national borders almost
unavoidable. Even though technology has made information readily accessible
for everyone, copyright laws are still applicable to web sites. Therefore
it has become an important issue to educate Internet users about their rights
and responsibilities as global citizens.
The object of this paper is to provide guidelines
for teachers and students at school X in Japan, Tokyo, in their creation of
Web Sites. The issues to be considered here are the implications of Internet
use, international treaties that regulate copyright across national borders,
and the national copyright laws that involve creation of Web Sites when adopting
or compiling works that are not in the public domain or not original works
created by the web designer. The guidelines resulting from this study should
give teachers and students a comprehensive overview of the regulations to
follow. These guidelines are followed by some advice regarding ethical use
and netiquette.
II. An American school in a Japanese society
School X is a private non – profit educational
institution, whose purpose is to provide the children of expatriates working
in Tokyo with an American based curriculum in the English language. The Japanese
classification for the school is "Jun Gakko Hojin" or quasi-educational foundation
(non-profit). The reason the school is quasi rather than full is related
to the Japanese legal definition of what an educational foundation is. It
does not meet that definition. As a private Japanese company the school abides
by Japanese law and is subject to the copyright law of this country as outlined
in its Copyright Law (Law 48, subsequently revised
[1]),
which is developed and administered by the Japan Copyright Office (JCO) of
the Agency for Cultural Affairs (ACA), which is a part of the Ministry of
Education, Science, Sports and Culture.[2]
To support the curriculum, the teachers at school
X mostly use works created and copyrighted in the USA, which are bought through
American vendors. Some texts are purchased on other continents. Materials
used for instruction of the Japanese language are of Japanese origin.
In addition to examining the Japanese copyright
law, one also needs to look at the unique Japanese culture to understand the
implications of the law. Despite a Western façade and a very modern society,
Japan's traditions remain strong in many areas: the Japanese adhere strictly
to subtleties of social protocol and value group harmony in which a person
has a relevant rank and order whether in familial, corporal or international
circles. The traditional tea ceremony and ikebana, flower arrangement,
are still taken very seriously and are an example of how Japan's ancient roots
are embedded in today's society. Japan is a blend of modern culture and deeply
entrenched traditions. In this society rules are strictly followed and few
exceptions are allowed. The Japanese copyright law has few limitations and
foreigners publishing in this country should be aware that provisions that
exist in their native country might not apply in Japan. For example, detailed
provisions of limitation on rights were introduced to permit exploitations
of works in exceptional cases. However, strict conditions are stipulated for
each case, and in some cases obligation to pay proper compensation is imposed
on the users. The limitations include: reproduction for private use (Art.
30); reproductions in libraries (Art. 31); quotations (Art.32); broadcasting
in school education programs (Art.34); reproduction in schools and other educational
institutions (Art.35); reproduction in examination questions (Art.36); performance
for non-profit making (Art.38); reproduction, etc. of articles on current
topics (Art. 39); exploitation of political speeches (Art. 40); ephemeral
recordings by broadcasting organizations (Art. 44), etc.[3]
However, the language in some of the articles in the Japanese Copyright
Law seem to be rather nebulous, as for example in Article 35:
"A person who is in charge of teaching in a school
and other educational institutions established not for profit-making may reproduce
a work already made public if and to the extent deemed necessary for the purpose
of use in the course of teaching, provided that such reproduction does
not unreasonably prejudice the interests of the copyright owner in the light
of the nature and the purpose of the work as well as the number of copies
and the form of reproduction."
How many reproductions and what form of reproduction would prejudice the
right of the copyright owner? Various interpretations of the terms of this
article are possible and it would seem advisable to treat this ruling with
caution.
III. International Treaties and Conventions
The fact that there is no such thing as an international copyright law,
has forced countries to offer protection to foreign works under certain conditions,
as expressed in international copyright treaties and conventions. There are
two major international copyright conventions: the Berne Convention for the
Protection of Literary and Artistic Property (Berne Convention) and the Universal
Copyright Convention (UCC)
Japan is a member of the following international treaties that govern copyright
relations with other member countries:
- Berne Convention. Japan has been a member since 1899.
- Universal Copyright Convention, established in Geneva in 1952 and revised
in Paris in 1971. Japan joined this convention in 1956.
- Convention for the Protection of Producers of Phonograms Against Unauthorized
Duplication of Their Phonograms (Phonogram), Geneva, 1971. Japan joined
this convention in 1978.
- World Trade Organization (WTO), 1994. Agreements regarding intangible
property rights, including copyright and other intellectual property rights.
Japan has been a member since 1995.
[4]
- The Rome Convention concluded in 1961 (for the protection of neighboring
rights). Japan joined in 1989.
- The TRIPS Agreement: Japan acceded to this agreement in 1994.
[5]
The level of protection of author's right and neighboring rights in Japan
exceeds the obligations of the above international conventions in a number
of aspects.
Under the Berne Convention Japan is obliged to give the work of a national
of another country that subscribed to the Berne Convention the same copyright
protection as it provides for a Japanese national. This is called the “principle
of national treatment.[6]
It means that the level of protection for foreign works should be equal to
or higher than that for domestic works. However, if the term of protection
in the foreign country is shorter than that in Japan, the term of protection
in Japan is limited to the former.[7]
Because the Internet goes across borders, one may wonder which country’s laws
will be applied if copyright infringement is detected. Under the Berne convention
the copyright law of the place where the work is exploited applies. When a
work is transmitted across borders the governing law is the copyright law
of the place where the transmission originates. The Copyright Council’s Multimedia
Subcommittee Working Group of Japan stated the following in 1995:
“Regarding cable or wireless transmission across
national borders for the purpose of direct reception by the public outside
the country, it would not be proper to hold that the rights of an author,
etc. extend to the simple act of reception in the country where the transmission
is received, so it is considered proper and realistic to recognize the
rights in the country where the transmission originates. With regard to
what is encompassed by “the public” under the present Copyright Law, there
is no explicit restriction limiting this to the public in Japan. Furthermore
the intention of the Copyright Law would appear to be that even if a transmission
is exclusively intended for reception by the public outside the country, as
long as the place where the transmission originates is within Japan, it is
considered that it must be interpreted that the rights of the author, etc.
apply.”
[8]
Further, Article 5 of the Berne Convention states:
(1) "Authors shall enjoy, in respect of works
for which they are protected under this Convention, in countries of the Union
other than the country of origin, the rights which their respective laws
do now or may hereafter grant to their nationals, as well as the rights
specially granted by this Convention."
(2) "The enjoyment and the exercise of these rights
shall not be subject to any formality; such enjoyment and such exercise shall
be independent of the existence of protection in the country of origin of
the work. Consequently, apart from the provisions of this Convention, the
extent of protection, as well as the means of redress afforded to the author
to protect his rights, shall be governed exclusively by the laws of the
country where protection is claimed."
(3) "Protection in the country of origin is governed
by domestic law. However, when the author is not a national of the country
of origin of the work for which he is protected under this Convention, he
shall enjoy in that country the same rights as national authors."[9]
The creation of a web site might involve all kinds
of copyrighted works, from a literary work to a popular song. Therefore, it
will be necessary to look at the Japanese copyright in order to understand
the responsibilities that web designers have when deciding to incorporate
photocopyrighted works in their web site.
IV. Structure of Rights in Japanese Copyright
Law
[10]
V. Works protected by the Japanese Copyright
Law
[11]
These works are explained in Article 10, Section 1, Chapter II
[12]
The following are excluded from “works”:
- News as simple communication of fact
- Programming language, rule (i.e. a special rule on how to use a programming
language in a particular program) and algorithm.
VI. Special provisions in Japanese copyright
law and the concept of Fair Use
1. Law concerning exceptional provisions for copyrights owned by the Allied
Powers and the Allied Nationals (Law No. 302, as amended by Law No. 48).
“The copyrights which existed on December 7, 1941,
and were owned by the Allied Powers and the Allied Nationals shall last during
the term of protection of the rights corresponding to copyright provided in
the Copyright Law and for an additional period equivalent to that from December
8, 1941 until the day before the day on which the Treaty of Peace with Japan
becomes effective.”
The added term is 3794 days for many works, however
it should be checked for every work. Also, term of protection of the right
of translation is to be prolonged further for six months.
[13]
2. Fair Use
The doctrine of Fair Use, as stipulated in the U.S. Copyright Law in Section
107, does not exist in the Japanese Copyright Law.
In the Wall Street Journal case of Dow Jones & Co. Inc., a Delaware corporation
versus Know-How Japan, K.K., a Japanese corporation, in which the appellee
filed with Tokyo District Court a copyright infringement suit against appellant
in 1990 for selling abstract services of "The Wall Street Journal" and "New
York Times" since 1986 to the public in Japan, the Court stated:
" Article 1 of the Copyright Law defines the objective
of the Copyright Law as "to secure the protection of the rights of authors,
etc. having regard to a just and fair exploitation of these cultural products,
and thereby to contribute to the development of culture." Article 30 et seq.
set forth the limitations on copyright based on legislative policies. It is
not reasonable to conclude immediately from these provisions that we generally
recognize the principles of fair use. As limitation to copyright by fair use
is based on the balance of conflicting interests, namely the interests of
author and public necessity, conditions to apply the principle of fair use
must be clearly set out. Under our legal system where such provision does
not exist, we cannot find general principle of fair use.”[14]
VII. Copyright Law and creation of web pages
by teachers and students at school X Specific guidelines
1.
When creating web pages one must keep in mind that the copyright laws
that govern print material also govern web pages distributed over the Internet.
Publishing a web site and including materials that were created by someone
else involves the distribution of these copyrighted materials, a right that
belongs exclusively to the copyright holder and which means infringement on
copyright law. Please consult the diagrams above for an overview of copyrighted
works.
2.
In many countries the creator of a work does not need to register for
copyright and the display of the copyright sign
Ó is not required for the work to
be copyrighted. Thus, it is best to assume that all works, whether print,
music, art, web creations, etc. are copyrighted.
3.
Works created in Japan and all works for which protection is requested
automatically fall under Japanese Copyright Law, as stipulated in the provision
of national treatment under the Berne Convention. This means that when a foreign
national discovers that the copyright on his work has been infringed on a
web site created in Japan, this national will seek protection in Japan and
Japanese Copyright Law will be applied.
4.
Copyright lasts from the time of creation up to the end of a period
of fifty years following the death of the author. (Copyright Law of Japan
Article 51
[15])
5.
It is not enough to only mention the name of the author. Reprinting,
distribution, sale or performance is not allowed without the copyright owner's
permission.
6.
In the limited cases where copying is allowed, Article 48 (Indications
of sources) of the Japanese Copyright Law states that the source from which
is copied must be clearly indicated. The title, the author, etc. must be indicated,
unless the work is anonymous, so that the work may be identified.
[16]
7.
A work that is made by an employee in the course of his duty and is
made public by the employer will belong to the employer unless otherwise stipulated
in a contract (Copyright Law of Japan Article 15
[17]). This means that any web
pages published using the school's web site will automatically belong to the
school.
8.
With some works, more than one copyright holder might be involved.
With songs, for example, there is the songwriter's right, the performer's,
the recorder's, etc.
9.
Steps to take to seek permission to use copyrighted works:[18]
·
Determine whether permission is needed. Works that are in the
public domain - that have surpassed their copyright duration- are free to
use.
·
Identify the copyright owner. Copyright might have passed into
other hands since the creation of the work. This might be a difficult task.
There are organizations that might help.
·
Identify the rights needed. This might simply be an explanation
of the intended use for the copyrighted work. Fees depend on the use.
·
Permissions should be sought before publication. They might
take time.
·
Sometimes the owner of a work will not require payment, especially
for educational or non-profit project or there may be other conditions.
·
Get written permission agreements.
10.
Royalty free and copyright free are terms that are used sometimes interchangeably,
but don't have the same meaning. Royalty-free means that after purchasing
the product (such as a CD-ROM of clip-art) the work can be used in a variety
of situations and in a broad range of uses, which mostly exclude commercial
purposes. Copyright-free is often used to describe work that is offered for
free on Web Sites. These are actually royalty-free or public domain.[19]
Other terms used are clip art, shareware or freeware. The assumption that
these materials can be used without limitation is erroneous. Conditions and
terms accompany such materials and must be examined before copying. (nolo.
com) Materials in the public domain are works for which copyright has expired,
or has not been renewed. Sometimes owners place their work deliberately in
the public domain. A fourth category are formed by works for which copyright
does not exist. It is always to double check before assuming that a work is
not protected by copyright.
11.
Some web sites use framing to connect to other web sites. Framing is
a lot like linking, but instead of taking the reader to the other web site,
the information from that web site page is imported in the original page and
displayed in a special frame. Web sites who do framing are generally seen
as stealing content from other Web sites. In the case of Futuredontics
Inc. v. Applied Anagramic Inc., 45 U.S.P.Q. 2d 2005 (C.D. Cal. 1998) the
court found framing to be a copyright infringement because the process resulted
in an unauthorized modification of the linked site.[20]
12.
Contact points in Japan for information on the exploitation of works
and contracts:[21]
·
Musical Works : Japanese Society for Rights of Authors,
Composers and Publishers (JASRAC) Tel: +81-3-3481-2121
·
Novels: Japan Federation for the Protection of Copyright
on Literary Works Tel: +81-3-3265-9658
·
Scenarios: Nihon Kyakuhonka Renmei Tel: +81-3-3401-2304
/ Nihon Shinario-sakka Kyokai Tel: +81-3-3584-1901
·
Artistic Works: Japan Artists' Association Tel: +81-3-3542-2581
·
Publications: Japan Book Publishers Association Tel:
+81-3-3268-1301
·
Performances: Japan Council of Performers' Organizations
(GEIDANKYO):+81-3-5353-6600
·
Phonograms: Recording Industry Association of Japan (RIAJ),
Tel: +81-3-3541-4411
·
Broadcasting: Nihon Hoso Kyokai (NHK) Tel: +81-3-3465-1111/
National Association of Commercial Broadcasters in Japan (NAB) Tel: +81-3-5213-7707
·
Video Works: Japan Video Software Association (JVA) Tel:
+81-3-3542-4433
·
Photography: All Japan Federation of Copyrights for Photographers
Tel: +81-3-3265-7451
·
Private Audio Recording: Society for the Administration
of Remuneration for Audio Home Recording (SARAH)Tel: +81-3-5353-0336
·
Reprography: Japan Reprographic Rights Center (JRRC)
Tel: +81-3-3401-2382
·
Computer Programs: Association of Copyright for Computer
Software (ACCS) Tel: +81-3-5976-5175
VIII. Other non-copyright related issues
- When linking to another web site's homepage there is no need to ask
for permission. However, even if the link appears perfectly legal, it is
considered good netiquette to obtain consent for all links.
- Deep linking - bypassing the homepage - is a practice that is rather
disliked by web owners. The homepage very often contains information that
the web owners want the users to see, like for example, advertisements.
In 1997, the Ticketmaster company sued Microsoft over deep links to Ticketmaster's
ordering forms. This case has not been resolved, but should be a warning
for anyone wanting to make links while ignoring a homepage.[22]
- When linking to other web sites it is advisable to include a disclaimer
that would minimalize liability for any activities that might occur when
the visitor is taken to the linked web site. A disclaimer is a statement
denying an endorsement or waiving liability for a potentially unauthorized
activity.[23]
- If faculty want to protect their own web creations, it is best to include
a copyright permission web page that provides the name, e-mail address and
phone number of the person who may be contacted.
- If faculty want to include pictures of students or their work in their
webpages, it is advisable to ask for permission from the parents. The Bellingham
school District has an excellent example of a "Parent Permission Form for
World Wide Web Publishing of Student Work."
[24]
