In Japan, there are three major mobile phone companies: NTT Docomo, KDDI mobile, and Softbank. Softbank (not a "bank") is the newest to come onto this market by acquiring the business of Vodafone Japan. Since then, it rapidly increased the number of users especially because it was the main retailer of iPhones (now KDDI is also a retailer of iPhones). Now, it is trying to expand its service area to the United States through a potential merger with Sprint.
However, it can be said that Softbank has been "notorious" for its poor signal reception. Although their base stations are all over Japan, partly because the bandwidth allocated to Softbank was easily blocked by buildings
or other obstructions, many Softbank users complained that they could not connect to the Internet or talk because of poor reception. Even Masayoshi Son, the founder and CEO of Softbank said "99% of the people may think that [the cell phone company which has] the poorest signal reception is Softbank. I, too, thought so.(99% no hito ga, ichiban tsunagaranai noha Softbank to omotteita kamo shirenai. Watashi mo sou omotet imashita.) "
However, partly because Softbank newly got a bandwidth which can be easily reached despite the obstacles called "Platinum Band" and partly because Softbank has been increasing the number of base stations, Masayoshi Son announced, as part of his announcement of Softbank's financial statements on January 31st, 2013, that according to the report of a research company, Ipsos, Softbank's "connection rate (setsuzoku ritsu)" was the best of all the major mobile companies. The research was conducted by dialing 130,000 users who
consented beforehand to check whether the signal could be received. Masayoshi Son, CEO, boasted about the result during the announcement, citing his tweet on September 22, 2010 that he would change the reception capacity of Softbank and make it better than NTT Docomo.
Personally, I was surprised by this news. I was an iPhone user on Softbank for several years but have not used Softbank since last summer. From my personal experience, I felt that the signal reception at that time was
unsatisfactory. However, considering this news, my experience may be out of date as long as the Ipsos' research is accurate.
DISCLAIMER: "IT Law issues in Japan" only provides general information about Japanese information technology law and does not, under any circumstances, constitute legal advice. You should first obtain the advice of professional legal counsel who is qualified in Japan before acting or refraining from acting based on this blog.
Thursday, January 31, 2013
Classic Japanese Books in NDL to be Distributed in a Digital Book Store
On January 29, 2013, Japanese Agency for Cultural Affairs ("ACA") announced that it will start an experiment of distributing books in National Diet Library ("NDL"). This project is called ACA Ebooks project.
Already, NDL started a project called "Digital Library from the Meiji Era," by which many books and other materials of Meiji era (1868 to 1912) and after are provided for free. Although most of them are in the public domain, it is trying to obtain a license from the author or quasi-license from the ACA commissioner (ACA commissioner may grant a quasi-license on orphan works) and increase the stock in the library.
The project ACA recently announced is an experimental project where some of these books are to be distributed in a Japanese online bookstore. Some of the reasons that Digital Library from the Meiji Era was not very easy to use for many people are that (1) they are basically just scanned image files and (2) they are only available at a certain site run by NDL. Because of the first feature, it is not easy to find a book we are interested in. They are only searchable by the titles, not by a keyword search of the contents. In addition, because of the second feature, only those who are interested in visiting the special site to search can obtain the books. When a person wants to find a book and make a keyword search in a digital bookstore like Amazon and iTunes, these books cannot be not found.
Unfortunately, the project's main purpose is not to improve both of the issues the Digital Library from the Meiji Era currently has. Rather, the main purpose is to show a model of digital publishing to other entities on how to lawfully publish digital books and thus encourage other companies and organizations to start publishing digitally. However, at least it is a good thing that some of the works in the Digital Library from the Meiji Era are distributed in one of the major digital bookstores in Japan (Kinokuniya). Also, the positive feedback to the project may promote further improvement of usability issues of Digital Library from the Meiji Era such as the difficulty to search and not being available in major digital bookstores. Therefore, I understand that this can be a milestone for possible improvement of the Digital Library from the Meiji Era that may lead to resolving the existing problems.
Already, NDL started a project called "Digital Library from the Meiji Era," by which many books and other materials of Meiji era (1868 to 1912) and after are provided for free. Although most of them are in the public domain, it is trying to obtain a license from the author or quasi-license from the ACA commissioner (ACA commissioner may grant a quasi-license on orphan works) and increase the stock in the library.
The project ACA recently announced is an experimental project where some of these books are to be distributed in a Japanese online bookstore. Some of the reasons that Digital Library from the Meiji Era was not very easy to use for many people are that (1) they are basically just scanned image files and (2) they are only available at a certain site run by NDL. Because of the first feature, it is not easy to find a book we are interested in. They are only searchable by the titles, not by a keyword search of the contents. In addition, because of the second feature, only those who are interested in visiting the special site to search can obtain the books. When a person wants to find a book and make a keyword search in a digital bookstore like Amazon and iTunes, these books cannot be not found.
Unfortunately, the project's main purpose is not to improve both of the issues the Digital Library from the Meiji Era currently has. Rather, the main purpose is to show a model of digital publishing to other entities on how to lawfully publish digital books and thus encourage other companies and organizations to start publishing digitally. However, at least it is a good thing that some of the works in the Digital Library from the Meiji Era are distributed in one of the major digital bookstores in Japan (Kinokuniya). Also, the positive feedback to the project may promote further improvement of usability issues of Digital Library from the Meiji Era such as the difficulty to search and not being available in major digital bookstores. Therefore, I understand that this can be a milestone for possible improvement of the Digital Library from the Meiji Era that may lead to resolving the existing problems.
One of the thirteen works to be distributed in the project is "Hentai Stories (Ero Ero Zoshi)" written by Kiyoshi Sakai. The reason is that this is one of the most popular book in the Digital Library from the Meiji Era, which may or may not draw the interest of some of you.
February 3rd, 2013 : Mr. Tomita, running Aozora Bunko, a free digital library of public domain books in Japan (similar to Project Gutenberg), wrote an article on the project.
DISCLAIMER:
"IT Law issues in Japan" only provides general information about
Japanese information technology law and does not, under any
circumstances, constitute legal advice. You should first obtain the
advice of professional legal counsel who is qualified in Japan before
acting or refraining from acting based on this blog.
Wednesday, January 30, 2013
Hello Kitty Shrine Enjoined
It has been a long time since sculptures of natural people have been
displayed to commemorate them and invite sightseers to Japan. Ryoma Sakamoto's sculpture in Kochi and Takamori Saigo's sculpture in Ueno park are a couple of famous examples. Recently, Japanese people started to display sculptures of non-human characters like characters in animation films and mangas (cartoons). Some of the examples are the sculptures of Kankichi Ryotsu (the main character of Kochira Katsushika-ku Kameari Koen Mae Hashutsujo) in Kameari, Kitaro (the main character of GeGeGe no Kitaro) in Tottori (Shigeru Mizuki road), and Sazae-san (the main character of Sazae-san) in Setagaya. Most of them are displayed lawfully by obtaining a license from the rights holder.
displayed to commemorate them and invite sightseers to Japan. Ryoma Sakamoto's sculpture in Kochi and Takamori Saigo's sculpture in Ueno park are a couple of famous examples. Recently, Japanese people started to display sculptures of non-human characters like characters in animation films and mangas (cartoons). Some of the examples are the sculptures of Kankichi Ryotsu (the main character of Kochira Katsushika-ku Kameari Koen Mae Hashutsujo) in Kameari, Kitaro (the main character of GeGeGe no Kitaro) in Tottori (Shigeru Mizuki road), and Sazae-san (the main character of Sazae-san) in Setagaya. Most of them are displayed lawfully by obtaining a license from the rights holder.
However, the Hello Kitty Shrine newly constructed on January 27, 2013 was different. Hello Kitty is one of the most famous Japanese
characters. The cute cat of a Japanese company called "Sanrio" appears
not only all over Japan but also around the world. A shopping street in Yamanashi (where the founder
of Sanrio is from) made a shrine with Hello Kitty as the goddess by displaying a sculpture of Hello Kitty in the shrine. At that time, the shopping street failed to obtain a license from Sanrio. Sanrio noticed it soon after its construction and asked for it to be ceased, resulting in the enjoyment of the public display of the shrine because of a possible copyright infringement. Now, the sculpture has been removed from the shrine.
In the U.S., there is 17 USC Article109(c) which stipulates,"[n]otwithstanding the provisions of section 106 (5) [copyright owner's exclusive right of display], the owner of a particular copy lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to display that copy publicly, either directly or by the projection of no more than one image at a time, to viewers present at the place where the copy is located." This means that in the U.S. as long as the Kitty sculpture is made lawfully, the owner is entitled to display the sculpture publicly without the permission of the rights holder (Sanrio).
In the U.S., there is 17 USC Article109(c) which stipulates,"[n]otwithstanding the provisions of section 106 (5) [copyright owner's exclusive right of display], the owner of a particular copy lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to display that copy publicly, either directly or by the projection of no more than one image at a time, to viewers present at the place where the copy is located." This means that in the U.S. as long as the Kitty sculpture is made lawfully, the owner is entitled to display the sculpture publicly without the permission of the rights holder (Sanrio).
It is not known whether the Kitty sculpture for the shrine was made
lawfully or not. However, in any case, in Japan, the display (even by the owner of the sculpture) at a shrine in an open place accessible to the public is likely to be an infringement of copyright absent a license from the copyright owner. Japanese Copyright Law actually provides similar limitations of author's (or rights holder's) exclusive right to display in Article 45(1). (So, if you buy a painting, you can display it in a museum.) However, Article 45(2) further states that such limitation does not apply to displays in open places accessible to the public.
lawfully or not. However, in any case, in Japan, the display (even by the owner of the sculpture) at a shrine in an open place accessible to the public is likely to be an infringement of copyright absent a license from the copyright owner. Japanese Copyright Law actually provides similar limitations of author's (or rights holder's) exclusive right to display in Article 45(1). (So, if you buy a painting, you can display it in a museum.) However, Article 45(2) further states that such limitation does not apply to displays in open places accessible to the public.
One of the reasons is that sculptures displayed outside in public can be subject to further limitation of exclusive rights under Article 46 (which is something like public sculpture provisions in Australian Copyright act Article 65 and some other similar provisions in some countries).
Without general fair use provision, it would be difficult for the shopping street to justify the display of the sculpture in an open shrine accessible to the public. (It may be argued that the sculpture is "inside" the building of shrine, but as the sculpture can be easily seen from outside, the sculpture is likely to be regarded at least "at places easily seen by the public".)
Without general fair use provision, it would be difficult for the shopping street to justify the display of the sculpture in an open shrine accessible to the public. (It may be argued that the sculpture is "inside" the building of shrine, but as the sculpture can be easily seen from outside, the sculpture is likely to be regarded at least "at places easily seen by the public".)
This may be another interesting difference between American and Japanese copyright law.
DISCLAIMER: "IT Law issues in Japan" only provides general information about Japanese information technology law and does not, under any circumstances, constitute legal advice. You should first obtain the advice of professional legal counsel who is qualified in Japan before acting or refraining from acting based on this blog.
DISCLAIMER: "IT Law issues in Japan" only provides general information about Japanese information technology law and does not, under any circumstances, constitute legal advice. You should first obtain the advice of professional legal counsel who is qualified in Japan before acting or refraining from acting based on this blog.
Criminalization of Unauthorized Downloading
One news from Japan that surprised foreign technology lawyers was that Japan criminalized unauthorized downloading by individual users.
Recently, Japanese copyright law is becoming stricter and stricter. The illustrative issue is a strong measure for unauthorized downloading. Before 2010, only those who uploaded the copyrighted materials were infringing copyrights (subject to both civil and criminal liability). This means that it was not illegal just to download such unauthorized materials for private usage.
Reflecting the decrease of sales of CDs and DVDs, there is strong lobbying to prevent unauthorized downloading. As a result, in 2010, unauthorized downloading was "illegalized." But at that time, downloaders only faced civil liability, not criminal liability.
However, on October 1st 2012, the amended Copyright Act was enacted, which mainly criminalizes unauthorized downloading.
One thing to note is that not every kind of downloading is criminalized. The five prongs for the crime of unauthorized downloading are:(1) knowingly conducted (in contrast to "negligently")(2) digital recording (in contrast to mere "streaming") of (3) recorded works (in contrast to "mere text or picture") (4) which are provided to the public for value (in contrast to "provided for free") and (5) are automatically transmitted to the public infringing copyright (i.e., illegally uploaded to the Internet).
Prong 1 means that negligence (or even gross negligence) is not sufficient to establish criminalization.
Prong 2 means that watching 'Japanimation' with fansabs through Youtube or other streaming sites is not likely to be criminalized. (You don't have to be worried about caching under the interpretation of the Japanese government.)
Prong 3 means that the unauthorized downloading of comics or novels is not likely to be criminalized.
Prong 4 means that they criminalize only the downloading of unauthorized works which compete with CD, DVD, or commercial downloading services (like iTunes). Downloading TV shows, in general, is not criminalized (because they can be viewed for free in general).
Prong 5 means that receiving copyrighted work through email attachments is not criminalized.
Further, according to Article 123 Section 1, the crime of unauthorized downloading is an offense subject to prosecution only on complaint from the victim (rights holder). See the possible effect of TPP on complaint requirement in my another blog article: "TPP's Effect on the Fanzine Environment"
There might be some arguments on the criminalization of unauthorized downloading. Some may see this to be narrowly tailored to respect the freedom of the Internet considering the above restraints. Others criticize the sudden introduction, saying that the government did not show the change in circumstances in the last two years which necessitates criminalization (i.e., the government did not show any empirical evidence that
illegalization was not enough).
I believe that the evaluation of the criminalization depends largely on how it is enforced by the police and prosecutors. Until now, there has been no case. The first criminal case of unauthorized downloading would be a
good touchstone to evaluate the newly enacted amendment.
Recently, Japanese copyright law is becoming stricter and stricter. The illustrative issue is a strong measure for unauthorized downloading. Before 2010, only those who uploaded the copyrighted materials were infringing copyrights (subject to both civil and criminal liability). This means that it was not illegal just to download such unauthorized materials for private usage.
Reflecting the decrease of sales of CDs and DVDs, there is strong lobbying to prevent unauthorized downloading. As a result, in 2010, unauthorized downloading was "illegalized." But at that time, downloaders only faced civil liability, not criminal liability.
However, on October 1st 2012, the amended Copyright Act was enacted, which mainly criminalizes unauthorized downloading.
One thing to note is that not every kind of downloading is criminalized. The five prongs for the crime of unauthorized downloading are:(1) knowingly conducted (in contrast to "negligently")(2) digital recording (in contrast to mere "streaming") of (3) recorded works (in contrast to "mere text or picture") (4) which are provided to the public for value (in contrast to "provided for free") and (5) are automatically transmitted to the public infringing copyright (i.e., illegally uploaded to the Internet).
Prong 1 means that negligence (or even gross negligence) is not sufficient to establish criminalization.
Prong 2 means that watching 'Japanimation' with fansabs through Youtube or other streaming sites is not likely to be criminalized. (You don't have to be worried about caching under the interpretation of the Japanese government.)
Prong 3 means that the unauthorized downloading of comics or novels is not likely to be criminalized.
Prong 4 means that they criminalize only the downloading of unauthorized works which compete with CD, DVD, or commercial downloading services (like iTunes). Downloading TV shows, in general, is not criminalized (because they can be viewed for free in general).
Prong 5 means that receiving copyrighted work through email attachments is not criminalized.
Further, according to Article 123 Section 1, the crime of unauthorized downloading is an offense subject to prosecution only on complaint from the victim (rights holder). See the possible effect of TPP on complaint requirement in my another blog article: "TPP's Effect on the Fanzine Environment"
There might be some arguments on the criminalization of unauthorized downloading. Some may see this to be narrowly tailored to respect the freedom of the Internet considering the above restraints. Others criticize the sudden introduction, saying that the government did not show the change in circumstances in the last two years which necessitates criminalization (i.e., the government did not show any empirical evidence that
illegalization was not enough).
I believe that the evaluation of the criminalization depends largely on how it is enforced by the police and prosecutors. Until now, there has been no case. The first criminal case of unauthorized downloading would be a
good touchstone to evaluate the newly enacted amendment.
DISCLAIMER: "IT Law issues in Japan" only provides general information about Japanese information technology law and does not, under any circumstances, constitute legal advice. You should first obtain the advice of professional legal counsel who is qualified in Japan before acting or refraining from acting based on this blog.
TPP's Effect on the Fanzine Environment
In Japan, like many other countries, infringement of copyright not only yields a result of civil liability, but also criminal liability. The most basic act is to reproduce a copyrighted product without a license (Article119(1) of Copyright Law of Japan) which would result in the maximum penalty of a ten year imprisonment and a ten million yen (about one hundred thousand dollars) fine.
However, there is one important trait of the Japanese crime of copyright infringement. Prosecution is possible only after the rights holder has filed a complaint to the police or the prosecutor (See Article 123(1)).
With some exceptions, most of such fanzines copy the pictures of the characters of the original copyrighted works and such acts are technically a "reproduction" of copyrighted works without a license. However, the stance of many publishers and other rights holders is that they basically fail to react, unless a particular fanzine causes a serious problem. One reason is that most of the producers of the fanzines are individual fans of the original works and rights holders do not want to offend the fans. Another reason is that fanzines may work as an advertisement of the original works. Further, because of its long history, Comiket now works
as a "funnel" to recruit young artists. Of the many fanzines created, some are exceptionally good and outstanding and the creators of such fanzines may become the next generation of manga artists.
However, this situation may change. The draft of the request of the US on Trans Pacific Partnership (TPP) 15.5(g) stipulates, "its authorities may initiate legal action ex officio with respect to the offenses described in this Chapter, without the need for a formal complaint by a private party or rights holder." To comply with this, the Japanese government may have to eliminate Article 123(1) from its copyright law.
It is not clear whether Japan will join TPP. Also, it is not clear how the law enforcement would react with the elimination of the complaint requirement. But it is at least noteworthy that this created a controversy in Japan and some opponents to the elimination of the complaint requirement express a strong concern toward the chilling effect on creativity and advocate strongly against TPP.
Feb 27, 2013: I came up with an interesting article by Professor William Fisher titled "The Implications for Law of User Innovation," which deals in part with fan fictions.
DISCLAIMER: "IT Law issues in Japan" only provides general information about Japanese information technology law and does not, under any circumstances, constitute legal advice. You should first obtain the advice of professional legal counsel who is qualified in Japan before acting or refraining from acting based on this blog.
However, there is one important trait of the Japanese crime of copyright infringement. Prosecution is possible only after the rights holder has filed a complaint to the police or the prosecutor (See Article 123(1)).
One of the results of the requirement of complaint is the popularity of fanzines or doujinshi in Japan. There is a big festival of fanzines called Comic Market (or Comiket) where more than 500 thousand people gather and exchange fanzines mostly based on Japanese animations, manga (cartoons) and games.
With some exceptions, most of such fanzines copy the pictures of the characters of the original copyrighted works and such acts are technically a "reproduction" of copyrighted works without a license. However, the stance of many publishers and other rights holders is that they basically fail to react, unless a particular fanzine causes a serious problem. One reason is that most of the producers of the fanzines are individual fans of the original works and rights holders do not want to offend the fans. Another reason is that fanzines may work as an advertisement of the original works. Further, because of its long history, Comiket now works
as a "funnel" to recruit young artists. Of the many fanzines created, some are exceptionally good and outstanding and the creators of such fanzines may become the next generation of manga artists.
As a result, until now, publishers have reacted against fanzines only few times such as when the fanzine of "the final episode of Doraemon" became so popular that many people confused it with the official final episode.
In this ecosystem, the requirement of a complaint in the copyright law works as a mechanism to respect the intention of the rights holder on whether or not they want to intervene. Although the complaint requirement is only the prerequisite for prosecution, in practice, it is rare for the police to commence an investigation without a complaint by the rights holder.
However, this situation may change. The draft of the request of the US on Trans Pacific Partnership (TPP) 15.5(g) stipulates, "its authorities may initiate legal action ex officio with respect to the offenses described in this Chapter, without the need for a formal complaint by a private party or rights holder." To comply with this, the Japanese government may have to eliminate Article 123(1) from its copyright law.
It is not clear whether Japan will join TPP. Also, it is not clear how the law enforcement would react with the elimination of the complaint requirement. But it is at least noteworthy that this created a controversy in Japan and some opponents to the elimination of the complaint requirement express a strong concern toward the chilling effect on creativity and advocate strongly against TPP.
Feb 27, 2013: I came up with an interesting article by Professor William Fisher titled "The Implications for Law of User Innovation," which deals in part with fan fictions.
DISCLAIMER: "IT Law issues in Japan" only provides general information about Japanese information technology law and does not, under any circumstances, constitute legal advice. You should first obtain the advice of professional legal counsel who is qualified in Japan before acting or refraining from acting based on this blog.
Saturday, January 26, 2013
Can Mixi, Japanese Social Network Service, Revive?
According to Neilsen Netview, a research company, the SNS used most by Japanese people in September 2012 was Facebook with 17,369 thousand users. The next closest was Twitter with 13,243 thousand users. The third was mixi, the Japanese SNS, but the people who visited is under one third of Facebook, only 5,686 thousand.
Just one year before, in September 2011, the most popular SNS in Japan was mixi, which had 21 million active users (who used the service within one year). This number was more than twice that of Facebook, which had only 9.7 million users.
One of the biggest traits of mix is that it is anonymous. Different from Facebook, no actual name was necessary and it was said that Japanese people prefer anonymity. However, with the boom of Facebook, mixi's popularity decreased. I personally created a mixi account in around 2005, but I have not logged onto mixi for more than a year.
There would be many reasons for the decline in mixi's popularity. One important aspect may be the specification changes, such as abolishing a "Footprint function", or "Ashiato Kino," by which users can tell who visited her page. Although this change was to deal with spammers who visited users' pages and attract users to visit their advertising pages, many mixi users protested, as they were unable to know who was interested in their site.
Facing this hardship, mixi started to change the managers and introduced the policy of "user first" by which they listen to the request of users and enhance the users' experience. In December 2012, one year and a half after the removal, mixi re-introduced a similar function to the footprint function.
But it would take some time before we can tell whether mixi can revive. In Japan, there are not many users who express their opinion to the administrating company. It may be that the silent majority's opinion is different from that of a user with a loud voice. "User first" policy may lead to reflect the needs of the users who have loud voices. The question is whether the users who do not actively complain to the administrations would be happy with the "enhancement of the user experience." Whether mixi can reflect the needs of such passive users would be the key for their revival.
DISCLAIMER: "IT Law issues in Japan" only provides general information about Japanese information technology law and does not, under any circumstances, constitute legal advice. You should first obtain the advice of professional legal counsel who is qualified in Japan before acting or refraining from acting based on this blog.
Just one year before, in September 2011, the most popular SNS in Japan was mixi, which had 21 million active users (who used the service within one year). This number was more than twice that of Facebook, which had only 9.7 million users.
One of the biggest traits of mix is that it is anonymous. Different from Facebook, no actual name was necessary and it was said that Japanese people prefer anonymity. However, with the boom of Facebook, mixi's popularity decreased. I personally created a mixi account in around 2005, but I have not logged onto mixi for more than a year.
There would be many reasons for the decline in mixi's popularity. One important aspect may be the specification changes, such as abolishing a "Footprint function", or "Ashiato Kino," by which users can tell who visited her page. Although this change was to deal with spammers who visited users' pages and attract users to visit their advertising pages, many mixi users protested, as they were unable to know who was interested in their site.
Facing this hardship, mixi started to change the managers and introduced the policy of "user first" by which they listen to the request of users and enhance the users' experience. In December 2012, one year and a half after the removal, mixi re-introduced a similar function to the footprint function.
But it would take some time before we can tell whether mixi can revive. In Japan, there are not many users who express their opinion to the administrating company. It may be that the silent majority's opinion is different from that of a user with a loud voice. "User first" policy may lead to reflect the needs of the users who have loud voices. The question is whether the users who do not actively complain to the administrations would be happy with the "enhancement of the user experience." Whether mixi can reflect the needs of such passive users would be the key for their revival.
DISCLAIMER: "IT Law issues in Japan" only provides general information about Japanese information technology law and does not, under any circumstances, constitute legal advice. You should first obtain the advice of professional legal counsel who is qualified in Japan before acting or refraining from acting based on this blog.
Thursday, January 24, 2013
How will Amazon AutoRip overcome the difficulty in Japanese Copyright Law?
On January 10th, Amazon.com announced a new service called "Amazon AutoRip." This service is, in essence, giving users MP3 versions of CDs they bought. What is important for a Japanese IT lawyer is the announcement that Amazon is planning to introduce AutoRip in Japan.
In order to do so, Amazon must overcome the difficulty in Japanese
Copyright Law. The most important of all is the MYUTA case. Image City ("IC"), the plaintiff, provided a cloud storage service for cell phone
users called MYUTA. In a nutshell, users convert the music in their CDs and upload it onto IC's server through the special software IC provided. The music a user uploaded can be used by the user (only the user herself!) with the cell phone of the user. JASRAC, the biggest music copyright
administration organization, threatened to sue IC saying that MYUTA was in
violation of music copyright. IC asked for declaratory judgment that MYUTA service was lawful. The court denied the declaratory judgment saying that MYUTA service violated the copyright.
The reason is very detailed so I will just pick up one of the most important issues in relation to Japanese cloud service. In Japanese Copyright Law, there is no general "fair use" clause. There is something
similar in the field of private usage in that the user's reproduction by himself for private purposes is lawful even without the rights holder's permission (Article 30 of Copyright Law).
Article 30. (1) It shall be permissible for a user to reproduce by himself a work forming the subject matter of copyright (hereinafter in this Subsection referred to as a "work") for the purpose of his personal use, family use or other similar uses within a limited circle”
Time shifting at home like in the Sony Corp. of America v. Universal City Studios, Inc. Case is OK in Japan under this clause. However, as the court found the role of IC in uploading and storing the data essential, the court held that IC, not the users, was reproducing. This means that the condition of reproduction of the user "by himself" in Article 30 is not met.
Under MYUTA court opinion, many of the "personal locker" type cloud services might be regarded as infringing copyright. Although this is just a lower court opinion (IC did not appeal.), this has been the "spectre" "haunting" the Japanese cloud industry.
In 2012, a report submitted to the Japanese Agency for Cultural Affairs pointed out that the committee members for the report "basically agreed to support the opinion to limit the scope of the MYUTA court opinion. (Hon Chosa Kenkyu Iinkai deha … MYUTA jiken ni tsui te, hanketsuno shatei wo genteiteki ni toraeru kenkai wo shijisuru iken de ohmune icchishita.)" But this is just a report, which has no authoritative power. I personally hope that the legislative action such as the amendment of Copyright Law would solve this problem but considering the current Japanese political situation, the legislative action may not come so quickly.
Amazon AutoRip is much more dangerous in view of Japanese Copyright Law than MYUTA. In MYUTA, users were uploading (using the software IC provided) the data. However, in the Amazon AutoRip case, Amazon is ripping the data and storing it in cloud storage for users. One way to solve this problem is to obtain license from right holders. However, there would be a time-consuming negotiation and Amazon might have to pay royalty. Of course, Amazon can launch the service and hope to win in the Japanese court, but I am not sure whether Amazon will take this risk.
DISCLAIMER: "IT Law issues in Japan" only provides general information about Japanese information technology law and does not, under any circumstances, constitute legal advice. You should first obtain the advice of professional legal counsel who is qualified in Japan before acting or refraining from acting based on this blog.
The reason is very detailed so I will just pick up one of the most important issues in relation to Japanese cloud service. In Japanese Copyright Law, there is no general "fair use" clause. There is something
similar in the field of private usage in that the user's reproduction by himself for private purposes is lawful even without the rights holder's permission (Article 30 of Copyright Law).
Article 30. (1) It shall be permissible for a user to reproduce by himself a work forming the subject matter of copyright (hereinafter in this Subsection referred to as a "work") for the purpose of his personal use, family use or other similar uses within a limited circle”
Time shifting at home like in the Sony Corp. of America v. Universal City Studios, Inc. Case is OK in Japan under this clause. However, as the court found the role of IC in uploading and storing the data essential, the court held that IC, not the users, was reproducing. This means that the condition of reproduction of the user "by himself" in Article 30 is not met.
Under MYUTA court opinion, many of the "personal locker" type cloud services might be regarded as infringing copyright. Although this is just a lower court opinion (IC did not appeal.), this has been the "spectre" "haunting" the Japanese cloud industry.
In 2012, a report submitted to the Japanese Agency for Cultural Affairs pointed out that the committee members for the report "basically agreed to support the opinion to limit the scope of the MYUTA court opinion. (Hon Chosa Kenkyu Iinkai deha … MYUTA jiken ni tsui te, hanketsuno shatei wo genteiteki ni toraeru kenkai wo shijisuru iken de ohmune icchishita.)" But this is just a report, which has no authoritative power. I personally hope that the legislative action such as the amendment of Copyright Law would solve this problem but considering the current Japanese political situation, the legislative action may not come so quickly.
Amazon AutoRip is much more dangerous in view of Japanese Copyright Law than MYUTA. In MYUTA, users were uploading (using the software IC provided) the data. However, in the Amazon AutoRip case, Amazon is ripping the data and storing it in cloud storage for users. One way to solve this problem is to obtain license from right holders. However, there would be a time-consuming negotiation and Amazon might have to pay royalty. Of course, Amazon can launch the service and hope to win in the Japanese court, but I am not sure whether Amazon will take this risk.
DISCLAIMER: "IT Law issues in Japan" only provides general information about Japanese information technology law and does not, under any circumstances, constitute legal advice. You should first obtain the advice of professional legal counsel who is qualified in Japan before acting or refraining from acting based on this blog.
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