Monday, June 02, 2008

Two from Japan

There are two items in the press about Japan and copyright law that make an interesting contrast. Here is the first:

'Fair use' stipulation planned for intellectual property

May 25, 2008

The government will ease its stringent restrictions on using copyrighted works, a development that will affect activities ranging from posting personal pictures on websites to developing Internet search engines, sources said. The Intellectual Property Strategy Headquarters, led by Prime Minister Yasuo Fukuda, has decided to make a Japanese version of a U.S. copyright law stipulation that allows for the "fair use" of copyrighted works for criticism, analyses, media reporting and research.

The decision was made to make it easier for venture companies to start new businesses, such as developing a rival to Google. The government intends to revise the Copyright Law to include a fair use stipulation as early as next year. The current Japanese Copyright Law, in principle, prohibits any copying of other people's works or distributing them on the Internet without permission. Exceptions to the law are copying works for personal use at home or for use in schools.

The planned stipulation will largely follow the one under the U.S. copyright law, which bases fair use on certain factors, including: whether the use of works is intended for commercial purposes; and whether the use of works influences the market of those works. The Japanese stipulation will also contain the condition that the use of other people's works must not unfairly hurt the interests of the copyright holders, the sources said.

The current Copyright Law is sweeping in its application. For example, blogs featuring holiday photos of authors posing with anime characters in amusement parks could constitute a violation of the law. That is because the law does not have a specific stipulation that allows such use. In addition, the creation of parodies based on other people's works could also be considered a violation. Those activities could be regarded as legal under the fair use stipulation. Archive services that copy and store information on websites could also become legal under the revised law, allowing companies to start up such businesses, the sources said.

The Intellectual Property Strategy Headquarters will agree to consider the fair use stipulation in its "intellectual property promotion plan 2008" next month. After that, a study panel will discuss the issue.

Here is the second, from Martyn Williams in PC World

Japan's Cultural Affairs Agency has proposed adding a fee to the price of Apple iPods and other digital music and video devices to partially compensate rights holders for revenues lost to piracy. The proposal represents an extension of an existing program that adds the fee to the price of blank recordable media and products such as MiniDisc recorders. Consumers end up paying an additional few tens of yens (tens of U.S. cents) for media under the scheme that started in 1992.

The agency, which is part of Japan's central government, wants this expanded to music players and video recorders based on hard-disk drives, an agency spokesman said on customary condition on anonymity. It's not clear how much extra the fee would add to the price of hardware. However the iPod and other music players are primarily devices for music playback, not music recording, so their potential role in piracy isn't as clear as that of a MiniDisc recorder or video recorder.

The proposal will likely be formed into a report that will feed into a planned Ministry of Education, Culture, Sports, Science and Technology proposal to amend Japan's copyright law. If everything goes to schedule the amended copyright law would come into effect in 2010 but the proposal's inclusion in the amendment to the copyright law is not automatic and could be shelved or changed prior to its inclusion.


Tomoki said...

The main topic of the symposium of the Copyright Law Association of Japan held on May 24 was "limitation on copyright" and Professor Gordon's market failure theory and related significant cases were also introduced.

As a Japanese attorney who is studying copyright law in the U.S., I hope that Japanese scholars would push this trend and in the near future, Japan could draft a new Japanese fair use clause, taking pros and cons of the Article 107 of current U.S. Copyright Act and its several reformation proposals into consideration.

UVSAR said...

The second article raises a worrying question of scope - I have no objection to the 'blank tape' levy or equivalents on products which are primarily intended to receive imprinted copies of material likely to be copyrighted (a blank tape can be used for copying works owned by the user but it's statistically very unlikely) - however to extend the logic to HDD-based devices makes me wonder over the application of the 'primary purpose by volume' argument. If a HDD-based music player should be subject to a levy, then surely so must the computer which was involved in the copying process onto the player, and why would the logic not therefore apply to flash drives, digital cameras, cellphones, etc. - all of which are capable of being used to store infringing works even if that isn't their 'intended' primary function?

I'm not arguing that the logic should be used in reverse to stop charges on blank tapes, as they are accepted by everyone as being used en-masse for storing copied audio and video - but a line has to be drawn somewhere between pre-emptive charging for a likely use, as opposed to a possible one. Surely an exhaustive argument on that route would lead to applying a levy on blank paper, in case someone used it to photocopy a book?

William Patry said...

Tomoki, thank you for comment. I am very sorry to hear that Japanese (or any) lawyers would study Professor Gordon's market theory of fair use, which in my opinion, fundamentally misunderstands and underprotects copyright. In my 28 years of studying and litigating fair use, testifying before Congress about it, and revising section 107 as a congressional staffer, it is in my view the worst article ever written about fair use.

Professor Neil Netanel has done a great job of explaining why in his article "Why has Copyright Expanded" which I previously blogged about. I refer readers to his piece, pages 17 n.48 and page 19.

The highlights of Professor Netanel's critique are: using the trappings of neoclassical economics (trappings because she is not an economist, but instead that all-too-common species of law professor who is not a specialist in an area but writes ostensibly as one)Professor Netanel points out that she analyzes fair use "principally in terms of the 'consensual exchange of goods' ..." As Professor Netanel observes "Neoclassicism ... sharply reduces the availability of fair use. In the neoclassical view, fair use reduces to anomolous cases of endemic and insuperable market failure. ... For [Gordon], fair use serves merely to effect a market bargain that cannot otherwise take place because transaction costs are too high. Under that reasoning, fair use will rarely apply." This is directly contrary to Judge Leval's admonition that fair use is not to be a rarely and barely tolerated phenomenon, but rather an essential part of the whole copyright scheme. One would never know it from Professor Gordon's writings.

Professor Gordon also looks at the dog from the wrong end: her approach asks whether the copyright owner would license the work. That is an extremely pernicious gutting of fair use, since it focuses the inquiry on what a hypothetical reasonable copyright owner might do, rather than at what use defendant made.

In short, I regret deeply the utter waste of time spent by examining an important doctrine from a perspective that is extremely hostile to it and incompatible with it.

Tomoki said...

Dear Mr. Patry:

Thank you so much for your detailed explanation. Since I am staying in the United States and could not attend that symposium, I am not sure about the discussions among the participants about Professor Gordon's theory. Your explanation was very helpful to me.

Following your recommendation in this blog, I am studying Professor Netanel's "Copyright Paradox". I would then read the paper you mentioned above.

Again, thank you so much.


William Patry said...

Tomoki, see there are two benefits to being in the States: a weak dollar and not having to study the Gordon article(s). Here by the way is a link to Professor Netanel's article: