After Aaron Swartz's death, a congressman proposed "Aaron's Law." One of the main points is to clarify and limit the ambiguous and extensive prohibition of the Computer Fraud and Abuse Act ("CFAA"). It is not the purpose of this post to explain US v. Nosal or other relevant cases of the CFAA in detail. Rather, this post will discuss the question of whether Japan needs to amend its equivalent CFAA.
The Act on the Prohibition of Unauthorized Computer Access (the "Act") is the Japanese equivalent of the CFAA. The basic concept of the Act is to ban two types of "unauthorized computer access".
The first type is misuse of fraudulently obtained ID/password (or other authentication information). A typical example is that A obtains B's ID and password by social engineering (fraudulently) and uses B's ID and password to access an Internet site protected by access control function (namely, the password authentication function). Article 2(4)(i) of the Act.
The second type is making use of the security hole. If there is a security hole, an originally impossible access to a computer (because of the access control function) becomes possible by the insertion of special information or a command. Such access is also prohibited by the Act. Article 2(4)(i) and (ii) of the Act.
I believe that compared to the CFAA, the prohibited acts of the Act on the Prohibition of Unauthorized Computer Access is more limited and clearer. The requirement of "fraudulently obtained" authentication information plays a significant role in the password misuse type unauthorized access. Let's say that Company A employs B. And B is an authorized administrator of Company A's server which is password protected. As an administrator, B obtains IDs and passwords of users of the site. What happens, if one day, B changes her mind and decides to make use of the IDs and passwords and obtain the information stored in the server for an evil purpose (perhaps B decided to quit company A and wanted to search for "useful" information for when she goes to a competitor company)? That is not a violation of the Act because B did not "fraudulently" obtain the IDs and passwords at the time B obtained them. Although that conduct might be a violation of the Unfair Competition Prevention Act which protects trade secrets, that is a different law. The Japanese version of the CFAA will not criminalize users of the sites protected by the access control functions as long as they are using their ID/password they originally lawfully (or at least non-fraudulently) obtained.
In 2012, there was a reform of the Act to make it more strict. However, the definition of "unauthorized computer access" remained unchanged. Some of the amendments are: (1) the maximum penalty for unauthorized computer access of one year imprisonment and a five hundred thousand yen fine (around $5,000) was increased to a three-year imprisonment and a million yen (around $10,000) and (2) the fraudulent acquisition of ID/passwords (such as through phishing) itself became criminalized.
Because of this, I think that this point perhaps might be relevant in Japan. However, Professor Lawrence Lessig argued that the "corruption" of the legislative system was the cause of the problematic laws such as the CFAA and other laws, and that the corruption problem should be changed by Aaron's Laws. I think that this point perhaps might be relevant in Japan.
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, February 27, 2013
Tuesday, February 26, 2013
University of Tokyo launched real MOOC
I explained in my previous post that there is no real
MOOC in Japan and the most similar ones are the lecture videos and
lecture materials provided on line. The two biggest differences between
real MOOC and Japanese online lecture videos are that (1) most lectures
are conducted in Japanese, and (2) MOOC is a real course where
interactive communication is possible.
On February 22, the University of Tokyo announced that it will launch a real MOOC using the existing Coursera service. What is epoch-making is that the new course will be (1) conducted in English and (2) will have interactive communication functions and exams, which, by passing, a participant may receive a certificate.
One of the two lectures initially offered are "Conditions of War and Peace" by Professor Kiichi Fujiwara. He is a famous international politics professor of the law faculty whose current research is mainly focused on national security issues. He was a Fulbright student at Yale and one of the few professors of our law faculty who can fluently give a lecture in English. As there are many difficult war and peace issues regarding East Asia and Far East, such as the territorial disputes and security treaties, I believe that Professor Fujiwara will give some insight on these issues from a Japanese scholar's viewpoint.
The other is by Dr. Hitoshi Murayama on the universe entitled "From the Big Bang to Dark Energy."
It is announced that the two courses are provided for the purpose of "demonstrative experiment." This means that the University of Tokyo wants to understand what MOOC is by actually providing these two courses. I believe that the success of these two courses will lead to a full-scale line up of MOOC courses by the University of Tokyo. So, it is crucial that many people sign up for the course and make use of this great occasion.
I believe that in the world where the international competition of universities is really keen, MOOC is one of the best ways to show the competitiveness of a university. Historically, the presence of the University of Tokyo has been big, at least in Asia, but recently, the presence of HKU, NUS, Seoul University, Peking University and other great Asian universities is becoming ever bigger. Also, now the competition is not just Asia-wide but global-wide. In order to attract brilliant people from all over the world, MOOC is a good way to show the excellence of the lectures conducted at the University of Tokyo. I believe that MOOC will make the University of Tokyo a big name internationally.
One thing to note is that the lectures start from September. It seems that they need some time for preparation but until then, you can watch videos of some English courses I recommended in my previous post.
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.
On February 22, the University of Tokyo announced that it will launch a real MOOC using the existing Coursera service. What is epoch-making is that the new course will be (1) conducted in English and (2) will have interactive communication functions and exams, which, by passing, a participant may receive a certificate.
One of the two lectures initially offered are "Conditions of War and Peace" by Professor Kiichi Fujiwara. He is a famous international politics professor of the law faculty whose current research is mainly focused on national security issues. He was a Fulbright student at Yale and one of the few professors of our law faculty who can fluently give a lecture in English. As there are many difficult war and peace issues regarding East Asia and Far East, such as the territorial disputes and security treaties, I believe that Professor Fujiwara will give some insight on these issues from a Japanese scholar's viewpoint.
The other is by Dr. Hitoshi Murayama on the universe entitled "From the Big Bang to Dark Energy."
It is announced that the two courses are provided for the purpose of "demonstrative experiment." This means that the University of Tokyo wants to understand what MOOC is by actually providing these two courses. I believe that the success of these two courses will lead to a full-scale line up of MOOC courses by the University of Tokyo. So, it is crucial that many people sign up for the course and make use of this great occasion.
I believe that in the world where the international competition of universities is really keen, MOOC is one of the best ways to show the competitiveness of a university. Historically, the presence of the University of Tokyo has been big, at least in Asia, but recently, the presence of HKU, NUS, Seoul University, Peking University and other great Asian universities is becoming ever bigger. Also, now the competition is not just Asia-wide but global-wide. In order to attract brilliant people from all over the world, MOOC is a good way to show the excellence of the lectures conducted at the University of Tokyo. I believe that MOOC will make the University of Tokyo a big name internationally.
One thing to note is that the lectures start from September. It seems that they need some time for preparation but until then, you can watch videos of some English courses I recommended in my previous post.
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.
Monday, February 25, 2013
Copyright Registration No "Prima Facie" Evidence of Copyright Validity in Japan
In the U.S., the effect of copyright registration is strong. According to 17 U.S.C. Article 410 (c), "the certificate of a registration made before or within five years after first publication of the work shall constitute prima facie evidence of the validity of the copyright" in legal proceedings. The reason is that the U.S. Copyright Office checks whether the material deposited constitutes copyrightable subject matter and that the other legal and formal requirements of this title have been met. Article 410(a). However, this is not the case in Japan.
In Japan, the effect of copyright registration is much weaker. One recent court opinion stated that because the registration application is only checked from the viewpoint of whether the application form is in accordance with the format stipulated by the law (see Order for Enforcement of Copyright Law Article 23), the registration has neither the effect of legal assumption of validity of the copyright, nor the de facto effect of presumption of the copyright validity. April 27, 2011, Tokyo District Court (unreported).
To supplement some basics, in Japan it is even not required to register a copyright for a litigation. You may commence a copyright litigation (such as infringement) without any registration. You may also license or assign the copyright without registration. When, then, do people use copyright registration in Japan? Actually, in some relatively rare cases.
There are three main kinds of registration: (1) real name of the author, (2) published or created date, and (3) transfer or license. Here's an official manual for registration (in Japanese).
First, if an author publishes a work with a pseudonym or anonymously, the protection of the copyright is generally 50 years after the published date. However, by registering the real name, the author of the pseudo-named or anonymous work is presumed to be the registered author and the protection extends to 50 years after death of the author. Article 75 of the Copyright Law.
Second, the published date of the works and created date of software can be registered, which presumes the published or created date. Article 76 and 76-2 of the Copyright Law.
Third, when a copyright is assigned or publisher's license is issued, such assignment or license can be registered. Article 77 and 88 of the Copyright Law. In practice, such registration rarely happens. This means that in many transactions, people do not register their transactions. For example, I already co-authored some books which means that I issued a publisher's license to the publisher. But none of the license contracts have been registered. The reason is that usually there would be no conflict on the assignment or transfer of the copyright. However, if you reasonably suspect the possibility of double sale (or double license), the registration is necessary, because whoever first obtains the registration becomes the lawful assignee or licensee. Possibly the publishers think I am a trustworthy lawyer and do not need to worry about a double license!
For your information, the registration of software is conducted at the Software Information Center (SOFTIC) and the other kinds of works are registered at the Agency for Cultural Affairs.
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.
In Japan, the effect of copyright registration is much weaker. One recent court opinion stated that because the registration application is only checked from the viewpoint of whether the application form is in accordance with the format stipulated by the law (see Order for Enforcement of Copyright Law Article 23), the registration has neither the effect of legal assumption of validity of the copyright, nor the de facto effect of presumption of the copyright validity. April 27, 2011, Tokyo District Court (unreported).
To supplement some basics, in Japan it is even not required to register a copyright for a litigation. You may commence a copyright litigation (such as infringement) without any registration. You may also license or assign the copyright without registration. When, then, do people use copyright registration in Japan? Actually, in some relatively rare cases.
There are three main kinds of registration: (1) real name of the author, (2) published or created date, and (3) transfer or license. Here's an official manual for registration (in Japanese).
First, if an author publishes a work with a pseudonym or anonymously, the protection of the copyright is generally 50 years after the published date. However, by registering the real name, the author of the pseudo-named or anonymous work is presumed to be the registered author and the protection extends to 50 years after death of the author. Article 75 of the Copyright Law.
Second, the published date of the works and created date of software can be registered, which presumes the published or created date. Article 76 and 76-2 of the Copyright Law.
Third, when a copyright is assigned or publisher's license is issued, such assignment or license can be registered. Article 77 and 88 of the Copyright Law. In practice, such registration rarely happens. This means that in many transactions, people do not register their transactions. For example, I already co-authored some books which means that I issued a publisher's license to the publisher. But none of the license contracts have been registered. The reason is that usually there would be no conflict on the assignment or transfer of the copyright. However, if you reasonably suspect the possibility of double sale (or double license), the registration is necessary, because whoever first obtains the registration becomes the lawful assignee or licensee. Possibly the publishers think I am a trustworthy lawyer and do not need to worry about a double license!
For your information, the registration of software is conducted at the Software Information Center (SOFTIC) and the other kinds of works are registered at the Agency for Cultural Affairs.
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.
Monday, February 18, 2013
Japanese Venture Company Defeated by Trademark Law
When a start-up launches a new business, it is usual in the United States to consult a lawyer. However, in Japan, this may not be true. A Japanese venture company affiliated with Tsukuba University called BearTail announced its new service called "Amazon Gacha" (or Blind Purchase at Amazon).
The original business model might be good. Japanese people love the "heartbeat" of a blind purchase. One of the best examples is "lucky bag" which is very popular among Japanese in the new year sales. Virtually every shop offers a lucky bag where customers do not know what they are purchasing. One of the most notable example is the lucky bag of Apple Store where one man waited for eight days (from Christmas!) to purchase the bag.
The business model of BearTail's new business is that they offer a similar experience every month from Amazon. They offer the users who pay 5000 yen (around $50) a month, the chance to receive a "secret" Amazon box, where popular items equivalent to 4500 yen (around $45) are contained. BearTail gains the margin of 500 yen (around $5) per month for its system to randomly choose popular items which may make the users become jubilant. This is a kind of "value adding intermediary" model in online shopping.
However, it looks like that they did not ask for a legal advice in deciding the name of its service. In Japan, like in many countries, the third party's usage of a trademark "similar" to the registered trademark is prohibited. Although Amazon (Japan/US) did not register the "Amazon Gacha" trademark, the trademark BearTail is apparently similar to Amazon's famous trademarks such as "AMAZON" or "Amazon.com." [Note that Gacha is a "standard" word for a blind purchase originally from a vending machine, usually for toys, but now is widely used to represent a blind purchase of any sort.] Also, there would be an additional problem of unfair competition.
Because many have criticized BearTail for using a confusingly similar trademark to Amazon without a license, BearTail wrapped up its business of Amazon Gacha within four days after the press release. If a "qualified" Japanese lawyer or a qualified patent lawyer was asked for advice, she would definitely have advised against the service. Of course, this does not mean that a lawyer would hinder BearTail's business. There are many techniques to realizing the business model with much lower legal risks such as changing the name to "Online Gacha" or "Gacha Delivery." It is best for a Japanese venture to consult with a qualified lawyer on many issues including the trademark before launching a new business. It is regretful that this kind of interesting new business failed because of a lack of legal advice. This case reminds everybody in the field of Japanese venture business of the significance of obtaining prior legal advice.
Finally, some people pointed out that a law firm group which boasts to have supported 74 companies for IPO is named as BearTail's "legal advisor" and state that the company must have asked for legal advice. I definitely do not think so. If there is a qualified lawyer in Japan who gave the go ahead for this apparent infringement, it means that the Japanese qualification system for lawyers is malfunctioning. I believe that the business was launched without obtaining any legal advice and after the criticism, BearTail consulted with the legal advisor who strongly urged them to finish the business because of the high possibility of a trademark infringement. However, I am not perfectly sure because the law firm who was named as their legal advisor has so far not explained anything publicly on this issue.
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.
Tuesday, February 12, 2013
Japanese High Profile Cyber-Criminal was Arrested
The most high-profiled cyber-crime in Japan last year was the "fake"
blackmail case, which framed many innocent people. Several people were
arrested by the police for sending threatening emails. One assistant
director of animation films was not only arrested but also accused of
sending an email threatening a massive killing. Before conviction,
however, it was revealed that these emails were sent by a special
computer virus. All those arrested were released and the prosecutor
revoked the accusation to the assistant director.
What is important for the virus writer was that he (or maybe she) sent announcement emails to the mass media, claiming that the Japanese police were incompetent and couldn't tackle with cyber-crime. Also, the perpetrator even sent a puzzle to the police, saying that if the police could solve it, they would get a clue of the suspect. The police solved the puzzle and went to the designated place where they found a cat with a choker ring on which an SD card was attached. These scenes have been broadcasted by the media again and again and the Japanese people were horrified by the unknown and terrible computer virus.
On February 10, the police announced that they had arrested a 30 year old man in Tokyo as the suspect of the cyber-crime. According to the media, the clue was on the SD card. The message on the card said: "My life was ruined by the false charge." The police claims that the arrested person had actually been convicted of sending a threatening message regarding the conflict between the users of a bulletin board, called "2ch", and Japanese major record company, Avex, about unlicensed usage by Avex of a character loved by 2ch users called "Mona."
As the arrested seems to be claiming his innocence, it is not clear at this stage whether he is the real cyber-criminal. However, what I found most important regarding this case is that the Japanese police forced many people to make false confessions during the interview. Most of the arrested framed by the virus writer eventually "confessed" to sending threatening emails. However, this was not true. The reason they confessed was because of the police's strong pressure during the interview. Although I admit the unique nature of Japanese criminal law which makes confessions important (such as the emphasis on the state of a criminal's mind), I think that the lesson of this case for the police is to reflect on themselves and refrain from applying too much pressure during an interview.
What is important for the virus writer was that he (or maybe she) sent announcement emails to the mass media, claiming that the Japanese police were incompetent and couldn't tackle with cyber-crime. Also, the perpetrator even sent a puzzle to the police, saying that if the police could solve it, they would get a clue of the suspect. The police solved the puzzle and went to the designated place where they found a cat with a choker ring on which an SD card was attached. These scenes have been broadcasted by the media again and again and the Japanese people were horrified by the unknown and terrible computer virus.
On February 10, the police announced that they had arrested a 30 year old man in Tokyo as the suspect of the cyber-crime. According to the media, the clue was on the SD card. The message on the card said: "My life was ruined by the false charge." The police claims that the arrested person had actually been convicted of sending a threatening message regarding the conflict between the users of a bulletin board, called "2ch", and Japanese major record company, Avex, about unlicensed usage by Avex of a character loved by 2ch users called "Mona."
As the arrested seems to be claiming his innocence, it is not clear at this stage whether he is the real cyber-criminal. However, what I found most important regarding this case is that the Japanese police forced many people to make false confessions during the interview. Most of the arrested framed by the virus writer eventually "confessed" to sending threatening emails. However, this was not true. The reason they confessed was because of the police's strong pressure during the interview. Although I admit the unique nature of Japanese criminal law which makes confessions important (such as the emphasis on the state of a criminal's mind), I think that the lesson of this case for the police is to reflect on themselves and refrain from applying too much pressure during an interview.
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.
Monday, February 11, 2013
Google News Settlement in France - How about Japan?
Google settled in France to pay 60 million Euros for establishing a fund for its Google News using the titles and snippets. What happens if Google or other companies use the headlines and a few lines of news from the news websites without a license in Japan?
There is a similar case in Japan called Yomiuri v. DAC Corporation ("DAC"). Yomiuri is a major newspaper company running a news website called Yomiuri Online. DAC started a service where they distribute the headlines of news websites including Yomiuri Online called "Line Topics." Yomiuri sued DAC for (1) infringement of copyright and (2) a tort claim.
The Tokyo District Court denied both of the claims. 1857 Hanrei Jiho 108 (Tokyo District Court, March 24, 2004).
For the first copyright claim, the court found that it was too short. As the headlines are made for the purpose of telling the contents of the news to the reader, there is little choice of the expression. This is something similar to the merger doctrine in American copyright law.
On the issue of tort, Tokyo District Court also denied Yomiuri's claim saying that as there is no exclusive right of Yomiuri, it is free for DAC to make use of such information.
Yomiuri appealed and the Tokyo High Court reversed the trial court's judgment (Intellectual Property High Court, October 6th, 2005).
First, on the copyright issue, the High Court agreed with the District Court. The points the High Court mentioned were that these headlines are merely facts expressed in a standard way and there is no creativity that the Japanese copyright law requires for the protection.
Second, on the tort issue, the court found that DAC was liable. Although the court's opinion is not a simple one, the punchlines are the following:
The court found that what DAC was merely dead-copying or doing something quite similar to dead-copying. In contrast, Yomiuri is taking the time and effort to make the headlines. The court found that for a tort claim to stand, it is not necessary to say that copyright or other rights were infringed, what is necessary is that the interests that are protected by the law are illegally invaded. Finding out that DAC is benefiting from advertisements and that Yomiuri is also trying to profit from advertisements, the court concluded that both companies' businesses are in a certain part competing. As a result, the court found that Digital Media had gone too far and it was not legally acceptable. Therefore, the court reversed the judgement and awarded Yomiuri damages. This is something like a "sweat of the brow" argument.
There are many interesting points of this case, but what I found interesting compared with French case is that it is virtually impossible to think of a 60 million Euro settlement. In the Yomiuri case, only 237,741 yen was awarded to Yomiuri. This is a little more than $2,000. The calculation of the court is 10,000 yen (about $100) damages for one month of operation. Of course, Google News is using snippets in addition to headlines and the snippet might enable a copyright claim and increase the amount of damages. But 60 million Euros seems to me to be going too far. It is often said that the amount of damages awarded in Japan is small. This might be another good example of how small Japanese damages are.
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.
There is a similar case in Japan called Yomiuri v. DAC Corporation ("DAC"). Yomiuri is a major newspaper company running a news website called Yomiuri Online. DAC started a service where they distribute the headlines of news websites including Yomiuri Online called "Line Topics." Yomiuri sued DAC for (1) infringement of copyright and (2) a tort claim.
The Tokyo District Court denied both of the claims. 1857 Hanrei Jiho 108 (Tokyo District Court, March 24, 2004).
For the first copyright claim, the court found that it was too short. As the headlines are made for the purpose of telling the contents of the news to the reader, there is little choice of the expression. This is something similar to the merger doctrine in American copyright law.
On the issue of tort, Tokyo District Court also denied Yomiuri's claim saying that as there is no exclusive right of Yomiuri, it is free for DAC to make use of such information.
Yomiuri appealed and the Tokyo High Court reversed the trial court's judgment (Intellectual Property High Court, October 6th, 2005).
First, on the copyright issue, the High Court agreed with the District Court. The points the High Court mentioned were that these headlines are merely facts expressed in a standard way and there is no creativity that the Japanese copyright law requires for the protection.
Second, on the tort issue, the court found that DAC was liable. Although the court's opinion is not a simple one, the punchlines are the following:
The court found that what DAC was merely dead-copying or doing something quite similar to dead-copying. In contrast, Yomiuri is taking the time and effort to make the headlines. The court found that for a tort claim to stand, it is not necessary to say that copyright or other rights were infringed, what is necessary is that the interests that are protected by the law are illegally invaded. Finding out that DAC is benefiting from advertisements and that Yomiuri is also trying to profit from advertisements, the court concluded that both companies' businesses are in a certain part competing. As a result, the court found that Digital Media had gone too far and it was not legally acceptable. Therefore, the court reversed the judgement and awarded Yomiuri damages. This is something like a "sweat of the brow" argument.
There are many interesting points of this case, but what I found interesting compared with French case is that it is virtually impossible to think of a 60 million Euro settlement. In the Yomiuri case, only 237,741 yen was awarded to Yomiuri. This is a little more than $2,000. The calculation of the court is 10,000 yen (about $100) damages for one month of operation. Of course, Google News is using snippets in addition to headlines and the snippet might enable a copyright claim and increase the amount of damages. But 60 million Euros seems to me to be going too far. It is often said that the amount of damages awarded in Japan is small. This might be another good example of how small Japanese damages are.
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.
Starting "Vinyl Vault" in Japan
A recent article by Glenn Fleishman on a new digital music service called Vinyl Vault is interesting to those interested in copyright issues. Amoeba launched the new service on which it claimed to have spent six years and around $11 million. Fleishman claims that although Amoeba pretends that orphan works can be digitized without a license as long as Amoeba retains the profit at an escrow, "[t]here's no such provision in copyright law for such an exemption, and Amoeba could find itself in real trouble."
This blog article will not discuss whether Mr. Fleishman's argument is correct. Rather, I want to explain what Amoeba or another company should do if it wants to establish a similar business in Japan.
Curiously, in Japan, there is such a provision in Copyright Law.
Article 67 (1) Where a work has been made public, or where it is clear that it has been offered to or made available to the public for a considerable period of time, the work may be exploited under the authority of a compulsory license issued by the Commissioner of the Agency for Cultural Affairs and upon depositing on behalf of the copyright owner compensation the amount of which is fixed by the Commissioner as corresponding to an ordinary rate of royalty, in the case, designated by Cabinet Order, where, after the due diligence, the copyright owner cannot be found for the reason that he is unknown or for other reasons.
Article 67(1) introduces the compulsory license system in which an orphan work can be licensed by the Commissioner of the Agency for Cultural Affairs. Of course, this happens only if the copyright owner cannot be found "after the due diligence." In such case the license fee is designated by the Commissioner as corresponding to an ordinary rate of royalty.
As of January 26, 2011, there have been 82 cases where the Commissioner granted a license. Some of the most notable usage is by the National Diet Library ("NDL"), where the Commissioner granted the license of 67,193 works for NDL's project called "Digital Archive from Meiji Era" on December 2010.
Currently, to meet the due diligence requirement, the Agency for Cultural Affairs requires five kinds of research: (1) research by the name of the author, (2) research on the publishers, (3) post a request for information on your website and obtain a link from CRIC's website for searching for the rights holder, (4) inquiry to the academy or author's guild, and (5) inquiry to the entities conducting copyright management business. (In the case of music, JASRAC is the Japanese equivalent to Harry Fox Agency, BMI, ASCAP, SESAC, and Sound Exchange.)
The due diligence requirement is actually burdensome. For example, Mr. Tanaka from NDL explained that for the Digital Archive from Meiji Era, NDL made inquiries to around 3,000 organizations and the cost was 260,000,000 yen (about $2,600,000) which is about several thousand yen (around thirty to fifty dollars) for one book.
However, the due diligence requirement is nevertheless essential, because the law does not want the unjust situation where a person who knows the existence of the rights holder (or who can easily know the rights holder) ask for the compulsory licensing and obtain the license against the will of the rights holder.
I think that a business similar to Vinyl Vault can be launched in Japan based on the compulsory licensing by the Commissioner. But because of the burden of due diligence as explained above, there is a question of profitability. However, as Amoeba paid $11 million to launch the Vinyl Vault, the cost for the due diligence might be trifle.
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.
This blog article will not discuss whether Mr. Fleishman's argument is correct. Rather, I want to explain what Amoeba or another company should do if it wants to establish a similar business in Japan.
Curiously, in Japan, there is such a provision in Copyright Law.
Article 67 (1) Where a work has been made public, or where it is clear that it has been offered to or made available to the public for a considerable period of time, the work may be exploited under the authority of a compulsory license issued by the Commissioner of the Agency for Cultural Affairs and upon depositing on behalf of the copyright owner compensation the amount of which is fixed by the Commissioner as corresponding to an ordinary rate of royalty, in the case, designated by Cabinet Order, where, after the due diligence, the copyright owner cannot be found for the reason that he is unknown or for other reasons.
Article 67(1) introduces the compulsory license system in which an orphan work can be licensed by the Commissioner of the Agency for Cultural Affairs. Of course, this happens only if the copyright owner cannot be found "after the due diligence." In such case the license fee is designated by the Commissioner as corresponding to an ordinary rate of royalty.
As of January 26, 2011, there have been 82 cases where the Commissioner granted a license. Some of the most notable usage is by the National Diet Library ("NDL"), where the Commissioner granted the license of 67,193 works for NDL's project called "Digital Archive from Meiji Era" on December 2010.
Currently, to meet the due diligence requirement, the Agency for Cultural Affairs requires five kinds of research: (1) research by the name of the author, (2) research on the publishers, (3) post a request for information on your website and obtain a link from CRIC's website for searching for the rights holder, (4) inquiry to the academy or author's guild, and (5) inquiry to the entities conducting copyright management business. (In the case of music, JASRAC is the Japanese equivalent to Harry Fox Agency, BMI, ASCAP, SESAC, and Sound Exchange.)
The due diligence requirement is actually burdensome. For example, Mr. Tanaka from NDL explained that for the Digital Archive from Meiji Era, NDL made inquiries to around 3,000 organizations and the cost was 260,000,000 yen (about $2,600,000) which is about several thousand yen (around thirty to fifty dollars) for one book.
However, the due diligence requirement is nevertheless essential, because the law does not want the unjust situation where a person who knows the existence of the rights holder (or who can easily know the rights holder) ask for the compulsory licensing and obtain the license against the will of the rights holder.
I think that a business similar to Vinyl Vault can be launched in Japan based on the compulsory licensing by the Commissioner. But because of the burden of due diligence as explained above, there is a question of profitability. However, as Amoeba paid $11 million to launch the Vinyl Vault, the cost for the due diligence might be trifle.
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.
Sunday, February 10, 2013
Facebook User in Japan Showed a Sharp Decline
Globally, the giant of the social networking service has been Facebook. However, in Japan, it was not in the past. At least by around 2011, Mixi was the most popular SNS in Japan. After 2012, Facebook became the most popular SNS.
Some surprising news is that according to the latest research in Japan, Facebook's users have started a decline. According to Cereja Technology, the number of Facebook users as of February 6 and 7, 2013 in Japan became 13,820,000, which is a 23.8% decline from January 2013. Cereja's research was based on the number of Facebook users when a company wanted to distribute a Facebook advertisement to Japanese users. According to similar research, the decline is mainly happening in the age range of 18 to 34.
It is not very clear why this kind of decrease has happened. One of the issues that may be relevant is the rise of a new SNS. It is not Google+, LinkedIn, nor Path. It is Line.
Line is a SNS operated by a Japanese entity of a Korean Company called NHN Japan. The company boasted having 100,000,000 users all over the world as of January 18, 2013. Of the 100,000,000 users NHN Japan claims that around 41,000,000 users are Japanese.
Line started from a smartphone App by which users can call for free (somewhat similar to Skype). But now it has a texting function and wall function similar to Facebook message and Facebook wall. It's growing popularity owes partially from the popularity of an unlimited data service plan for Japanese smartphone users and partially from the fact that Line made full use of the address book of the smartphone installed to help the user to get connected with other Line "friends".
It is not clear whether Line can replace Facebook in Japan. It is also possible that Japanese people are just using Line in some occasions and for some purposes and using Facebook in other occasions and for other purposes. Therefore, it is too early to conclude that Line's rising popularity has made young Facebook users logout from Facebook and turn to Line.
However, at least, as Facebook's ARPU (Average Revenue Per User) is not in the trend of rapid increase, it is important for Facebook to keep increasing the number of the users. I think there are two important points that we should pay attention to: (1) whether this trend of decline of the numbers of Facebook users in Japan continues and (2) whether other countries follow the Japanese trend.
Some surprising news is that according to the latest research in Japan, Facebook's users have started a decline. According to Cereja Technology, the number of Facebook users as of February 6 and 7, 2013 in Japan became 13,820,000, which is a 23.8% decline from January 2013. Cereja's research was based on the number of Facebook users when a company wanted to distribute a Facebook advertisement to Japanese users. According to similar research, the decline is mainly happening in the age range of 18 to 34.
It is not very clear why this kind of decrease has happened. One of the issues that may be relevant is the rise of a new SNS. It is not Google+, LinkedIn, nor Path. It is Line.
Line is a SNS operated by a Japanese entity of a Korean Company called NHN Japan. The company boasted having 100,000,000 users all over the world as of January 18, 2013. Of the 100,000,000 users NHN Japan claims that around 41,000,000 users are Japanese.
Line started from a smartphone App by which users can call for free (somewhat similar to Skype). But now it has a texting function and wall function similar to Facebook message and Facebook wall. It's growing popularity owes partially from the popularity of an unlimited data service plan for Japanese smartphone users and partially from the fact that Line made full use of the address book of the smartphone installed to help the user to get connected with other Line "friends".
It is not clear whether Line can replace Facebook in Japan. It is also possible that Japanese people are just using Line in some occasions and for some purposes and using Facebook in other occasions and for other purposes. Therefore, it is too early to conclude that Line's rising popularity has made young Facebook users logout from Facebook and turn to Line.
However, at least, as Facebook's ARPU (Average Revenue Per User) is not in the trend of rapid increase, it is important for Facebook to keep increasing the number of the users. I think there are two important points that we should pay attention to: (1) whether this trend of decline of the numbers of Facebook users in Japan continues and (2) whether other countries follow the Japanese trend.
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.
Half of College Students Using SNS for Finding Jobs
How do Japanese college students find jobs? To understand the issue, first, the Japanese system of simultaneous recruiting of new graduates.
Different from most other countries, Japanese college students virtually have only one chance to get a permanent job. Namely, they want to or need to find a job and start working from April of the year of graduation. (N.B., the Japanese school year starts from April and ends in March.) On December 1st, junior students officially start attending explanatory sessions, interviews and other activities to find jobs. Many expect to find a job by the start of their senior year. On October 1st of the senior year, students who found jobs are officially offered a job, which is the official end of their job finding activities. (Those who could not get an official offer may have to continue searching for a job afterwards.)
One important characteristic is that a Japanese company does not generally require the new graduates to be an immediate asset for the firm. Therefore, students do no need to have some experience in relation to the job (such as intern or part-time job) during college. What the companies do is conduct systematized training and educate them.
The education, of course, needs a lot of time, money and effort. It would be a loss of an "asset" if those educated employees easily switch jobs. So, another important trait is that compared to many other markets around the world, the Japanese job market is relatively illiquid and Japanese companies traditionally offer lifetime employment.
The other important issue is that this is virtually the only chance a student may have to get a permanent job. Of course, there are some successful stories where a worker changed her status from a part-time to a full-time position, but at this time, they are exceptional. So, Japanese juniors are zealous and desperate to find a good full-time job during this period of simultaneous recruiting.
As a result, juniors tend to quickly follow the trend of the society. In a recent research by Dentsu Public Relations, about half of juniors are using social networking sites to find jobs.
Different from the US, LinkedIn is not very popular in Japan. Therefore, the site most used for finding jobs is Facebook. According to the research, some students use Facebook as a digital business card and some use Twitter as a tool to collect informal information.
I am not sure whether the Japanese system of simultaneous recruiting of new graduates is good or not, but at least, in this world where SNSs are widely used, it is good to learn to use it as a business tool at a relatively early stage.
Different from most other countries, Japanese college students virtually have only one chance to get a permanent job. Namely, they want to or need to find a job and start working from April of the year of graduation. (N.B., the Japanese school year starts from April and ends in March.) On December 1st, junior students officially start attending explanatory sessions, interviews and other activities to find jobs. Many expect to find a job by the start of their senior year. On October 1st of the senior year, students who found jobs are officially offered a job, which is the official end of their job finding activities. (Those who could not get an official offer may have to continue searching for a job afterwards.)
One important characteristic is that a Japanese company does not generally require the new graduates to be an immediate asset for the firm. Therefore, students do no need to have some experience in relation to the job (such as intern or part-time job) during college. What the companies do is conduct systematized training and educate them.
The education, of course, needs a lot of time, money and effort. It would be a loss of an "asset" if those educated employees easily switch jobs. So, another important trait is that compared to many other markets around the world, the Japanese job market is relatively illiquid and Japanese companies traditionally offer lifetime employment.
The other important issue is that this is virtually the only chance a student may have to get a permanent job. Of course, there are some successful stories where a worker changed her status from a part-time to a full-time position, but at this time, they are exceptional. So, Japanese juniors are zealous and desperate to find a good full-time job during this period of simultaneous recruiting.
As a result, juniors tend to quickly follow the trend of the society. In a recent research by Dentsu Public Relations, about half of juniors are using social networking sites to find jobs.
Different from the US, LinkedIn is not very popular in Japan. Therefore, the site most used for finding jobs is Facebook. According to the research, some students use Facebook as a digital business card and some use Twitter as a tool to collect informal information.
I am not sure whether the Japanese system of simultaneous recruiting of new graduates is good or not, but at least, in this world where SNSs are widely used, it is good to learn to use it as a business tool at a relatively early stage.
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.
Friday, February 8, 2013
MOOC in Japan
A massive open online course (MOOC) is an online course with the traits of massive participation and open access. Some of the famous MOOCs are edX, Coursera, and Udacity. The United States is the center of this movement for education free from the limitations of people, place, and time. I personally like Harvard Law School Professor Fisher's copyright course provided in edX. (Although the official enrollment period is finished, as reported in Harvard Gazette, you can freely see the youtube videos through the Professor's personal website.)
As is often the case, Japan is somewhat behind the innovative trend of the MOOC, but that does not mean there is no MOOC in Japan.
There is the Japan Open Course Ware Consortium, or JOCW, for the purpose of providing open course ware. Twenty universities are official members and they exchange information and try to encourage broad use of the course materials and lecture videos provided online.
One of the most important courses open for access via the Internet is the courses of the University of Tokyo, called Todai Open Course Ware. This is a site where the lecture videos, materials and textbooks are provided for free. You even do not need to register to enjoy the full world of courses.
Note that University of Tokyo is not the only university conducting the OCW project. Other members of JOCW are also doing well. For example, Kyoto University's OCW is also strong, such as Associate Professor Shikiko Kawakami's "Introduction to Japanese Classical Literature", which is worthwhile recommending.
However, there are two main things on Todai Open Course Ware that I think need improving. The first is that there are only a few lectures conducted in English. Although a substantial number of courses provide English course materials, most of the lectures are in Japanese. I only found one English lecture series which is "International Lectures on Frontier Physics 1" by Dr. Hirosi Ooguri. (Note that one lecture by Prof. Michael Sandel is provided in English.)
There are many episodes of international/transnational collaborations and inspirations of diversity of participants in American MOOCs, some of which are shown in Thomas Friedman's well read essay. However, that is only possible when the lectures are conducted in English. Japanese lectures can, at most, draw only domestic attention. As a result, it is necessary to increase the number of lectures in English.
The other important thing is that the courses are one-sided. There is virtually no way for the participants to interactively communicate with the professors. (Of course, you can find out the email address of the professor and send an email but that's not a very efficient way.) In order for the course to be more exciting and meaningful, the interaction between the students and professors is essential. Also, I believe that teachers can learn a lot more from the feedback of the participants, especially when the lecture is conducted in English and a diversity of people can participate. Thus, it is also recommended that Japanese Universities should provide interactive communication such as a chat system, bulletin
board, or with essays/exams.
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.
As is often the case, Japan is somewhat behind the innovative trend of the MOOC, but that does not mean there is no MOOC in Japan.
There is the Japan Open Course Ware Consortium, or JOCW, for the purpose of providing open course ware. Twenty universities are official members and they exchange information and try to encourage broad use of the course materials and lecture videos provided online.
One of the most important courses open for access via the Internet is the courses of the University of Tokyo, called Todai Open Course Ware. This is a site where the lecture videos, materials and textbooks are provided for free. You even do not need to register to enjoy the full world of courses.
Note that University of Tokyo is not the only university conducting the OCW project. Other members of JOCW are also doing well. For example, Kyoto University's OCW is also strong, such as Associate Professor Shikiko Kawakami's "Introduction to Japanese Classical Literature", which is worthwhile recommending.
However, there are two main things on Todai Open Course Ware that I think need improving. The first is that there are only a few lectures conducted in English. Although a substantial number of courses provide English course materials, most of the lectures are in Japanese. I only found one English lecture series which is "International Lectures on Frontier Physics 1" by Dr. Hirosi Ooguri. (Note that one lecture by Prof. Michael Sandel is provided in English.)
There are many episodes of international/transnational collaborations and inspirations of diversity of participants in American MOOCs, some of which are shown in Thomas Friedman's well read essay. However, that is only possible when the lectures are conducted in English. Japanese lectures can, at most, draw only domestic attention. As a result, it is necessary to increase the number of lectures in English.
The other important thing is that the courses are one-sided. There is virtually no way for the participants to interactively communicate with the professors. (Of course, you can find out the email address of the professor and send an email but that's not a very efficient way.) In order for the course to be more exciting and meaningful, the interaction between the students and professors is essential. Also, I believe that teachers can learn a lot more from the feedback of the participants, especially when the lecture is conducted in English and a diversity of people can participate. Thus, it is also recommended that Japanese Universities should provide interactive communication such as a chat system, bulletin
board, or with essays/exams.
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.
Can Japanese drugstores sell drugs online?
In Japan, the sale of drugs through the Internet by the drugstores was lawful for a long time. However, in 2009, the amended Enforcement Regulations of the Pharmaceutical Affairs Law banned most of the drug transactions conducted online.
The amendment was in accordance with the amendment of the Pharmaceutical Affairs Law which categorized the drugs into three categories, 1st, 2nd and 3rd, based on the possibility of their side effects. The 1st category drug is the most dangerous one, which needs the highest level of care. The 2nd category drug is less dangerous but care still needs to be taken. The 3rd category drug has the least amount of expected side effects (is it safe to say this?). Although the law itself did not stipulate anything on the sale of drugs through the Internet, the amended Enforcement Regulations advised that only 3rd category drugs may be sold through the Internet.
At that time, the drugs categorized in the 1st and 2nd categories made up 67% of all the sales of drugs. The Enforcement Regulations mean that virtually more than two thirds of all the drug transactions is prohibited. Two companies selling drugs filed a lawsuit. Kenko.com and Wellnet v. Japanese Government.
On January 11th, 2013, the Supreme Court rendered a judgment, affirming the high court's judgment, that the amended Enforcement Regulations of the Pharmaceutical Affairs Law is null and void. The court found that the law did not give the Minister of Health, Labour and Welfare the authority to amend the Enforcement Regulations to totally ban the online sales of 2nd and 3rd category drugs thus, because the Minister exceeded its authority, the Enforcement Regulations became invalid.
One good thing to note is that in Japan, it is really rare that the court agrees with the plaintiff and renders laws and regulations void. Although the Japanese Supreme court has the Marbury v. Madison like authority to nullify the laws and regulations against the Constitution, such authority is rarely exercised. It is said that there are less than ten occasions that the court nullified a law in its entire history since 1947 (when the Supreme Court of Japan was established). Even including the cases where regulations and ordinances are found invalid, it is safe to say that the January 11 Judgment is a very rare case.
As a result of the court's opinion, all the sales of drugs online by drugstores is now lawful. However, the government is trying to make new laws and regulations to restrict the sale of drugs through the Internet. Although I can understand the necessity to regulate them to some extent in order to prevent tragedy because of the adverse effect of some drugs, the regulation might make the plaintiffs fight against the government to win the freedom of the Internet, depending on the contents of the regulations. It is not clear how long the online drugstores can enjoy "the freedom of the Internet."
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 amendment was in accordance with the amendment of the Pharmaceutical Affairs Law which categorized the drugs into three categories, 1st, 2nd and 3rd, based on the possibility of their side effects. The 1st category drug is the most dangerous one, which needs the highest level of care. The 2nd category drug is less dangerous but care still needs to be taken. The 3rd category drug has the least amount of expected side effects (is it safe to say this?). Although the law itself did not stipulate anything on the sale of drugs through the Internet, the amended Enforcement Regulations advised that only 3rd category drugs may be sold through the Internet.
At that time, the drugs categorized in the 1st and 2nd categories made up 67% of all the sales of drugs. The Enforcement Regulations mean that virtually more than two thirds of all the drug transactions is prohibited. Two companies selling drugs filed a lawsuit. Kenko.com and Wellnet v. Japanese Government.
On January 11th, 2013, the Supreme Court rendered a judgment, affirming the high court's judgment, that the amended Enforcement Regulations of the Pharmaceutical Affairs Law is null and void. The court found that the law did not give the Minister of Health, Labour and Welfare the authority to amend the Enforcement Regulations to totally ban the online sales of 2nd and 3rd category drugs thus, because the Minister exceeded its authority, the Enforcement Regulations became invalid.
One good thing to note is that in Japan, it is really rare that the court agrees with the plaintiff and renders laws and regulations void. Although the Japanese Supreme court has the Marbury v. Madison like authority to nullify the laws and regulations against the Constitution, such authority is rarely exercised. It is said that there are less than ten occasions that the court nullified a law in its entire history since 1947 (when the Supreme Court of Japan was established). Even including the cases where regulations and ordinances are found invalid, it is safe to say that the January 11 Judgment is a very rare case.
As a result of the court's opinion, all the sales of drugs online by drugstores is now lawful. However, the government is trying to make new laws and regulations to restrict the sale of drugs through the Internet. Although I can understand the necessity to regulate them to some extent in order to prevent tragedy because of the adverse effect of some drugs, the regulation might make the plaintiffs fight against the government to win the freedom of the Internet, depending on the contents of the regulations. It is not clear how long the online drugstores can enjoy "the freedom of the Internet."
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, February 7, 2013
Is Google Street View a Violation of Privacy?
Although Google Street View is convenient and fun, several people
have showed concern about it and there have even been some court cases
as a result of Google's actions. Japan has a similar case, Jane Doe v.
Google Japan Inc., which is called "Google Street View Case". Let me
introduce this case briefly.
The case is somewhat similar to a well known American case of Boring v. Google, Inc., 598 F.Supp.2d 695 (W.D. Pa. 2009). Intuitively, you may think that what Google did in the Japanese case is worse than in the Boring case. In the Japanese case, Google accidentally took a picture of some underwear that a young woman had hung out on the balcony to dry. That picture was disclosed in Google Street View. The woman found the picture and sued Google Japan for invasion of privacy. After the woman filed a complaint, Google removed the picture from Google Street View.
The court found that the picture was not a high-resolution image, so the only thing that people using Google Street View could see was some kind of laundry being hung out, it was difficult to see that it was underwear. Based on that fact, the trial court concluded that Google's actions were within the range that the plaintiff should tolerate and rendered their judgment on the side of Google. Jane Doe v. Google Japan Inc., Home Page of Supreme Court (Fukuoka District Court, March 16, 2011). The woman appealed.
The appeal court affirmed. Jane Doe v. Google Japan Inc., unreported (Fukuoka High Court, July 13, 2012). The appeal court decided on two alleged privacy invasions: the invasion of privacy by photographing the underwear and the invasion of privacy by disclosing the photo. First, the court found as a general principle that when the photographing invades the interest of peace in a private life and is evaluated as illegal, such photographing consists of a tort of invasion of privacy. However, regarding this case, as the alleged underwear in the picture was far away from the place the photo was taken, the court found that it was difficult to even conclude that it was a picture of laundry. Therefore the court concluded that from a general point of view, the interest of peace in a private life was not invaded and thus denied the invasion of privacy by the photographing of it. Regarding the disclosure, the court first pointed out the same issue as the photographing. The court then pointed out that the disclosure was conducted not in a way to unreasonably attract the attention of the viewers. As a result, the court also denied the invasion of privacy.
One important thing to note is that at the time the case was argued in trial court, the plaintiff litigated by herself without any support from a lawyer. As a result, the plaintiff failed to secure the important evidence of the digital data of the picture. Before the lawyers became involved, Google had already removed the picture. So, the courts decided the outcome of the case based on the picture which the plaintiff had printed out in an Internet cafe, which the court described as being difficult to tell whether it was laundry or not. It may be another example of the difficulty of conducting a cyberlaw litigation without support from an expert lawyer.
The case is somewhat similar to a well known American case of Boring v. Google, Inc., 598 F.Supp.2d 695 (W.D. Pa. 2009). Intuitively, you may think that what Google did in the Japanese case is worse than in the Boring case. In the Japanese case, Google accidentally took a picture of some underwear that a young woman had hung out on the balcony to dry. That picture was disclosed in Google Street View. The woman found the picture and sued Google Japan for invasion of privacy. After the woman filed a complaint, Google removed the picture from Google Street View.
The court found that the picture was not a high-resolution image, so the only thing that people using Google Street View could see was some kind of laundry being hung out, it was difficult to see that it was underwear. Based on that fact, the trial court concluded that Google's actions were within the range that the plaintiff should tolerate and rendered their judgment on the side of Google. Jane Doe v. Google Japan Inc., Home Page of Supreme Court (Fukuoka District Court, March 16, 2011). The woman appealed.
The appeal court affirmed. Jane Doe v. Google Japan Inc., unreported (Fukuoka High Court, July 13, 2012). The appeal court decided on two alleged privacy invasions: the invasion of privacy by photographing the underwear and the invasion of privacy by disclosing the photo. First, the court found as a general principle that when the photographing invades the interest of peace in a private life and is evaluated as illegal, such photographing consists of a tort of invasion of privacy. However, regarding this case, as the alleged underwear in the picture was far away from the place the photo was taken, the court found that it was difficult to even conclude that it was a picture of laundry. Therefore the court concluded that from a general point of view, the interest of peace in a private life was not invaded and thus denied the invasion of privacy by the photographing of it. Regarding the disclosure, the court first pointed out the same issue as the photographing. The court then pointed out that the disclosure was conducted not in a way to unreasonably attract the attention of the viewers. As a result, the court also denied the invasion of privacy.
One important thing to note is that at the time the case was argued in trial court, the plaintiff litigated by herself without any support from a lawyer. As a result, the plaintiff failed to secure the important evidence of the digital data of the picture. Before the lawyers became involved, Google had already removed the picture. So, the courts decided the outcome of the case based on the picture which the plaintiff had printed out in an Internet cafe, which the court described as being difficult to tell whether it was laundry or not. It may be another example of the difficulty of conducting a cyberlaw litigation without support from an expert lawyer.
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.
Credentials in the Field of Information Technology
In Japan, in principle, you do not need to pass any kind of
examination to practice in the field of information technology. There
really are skilled IT engineers who own no credentials regarding
information technology. But for those who want to change jobs, it might
be beneficial to have some kind of qualification.
There are two kinds of credentials. One is a governmental certificate and the other is a private qualification. You may be able to easily understand the latter. As in other countries, Oracle provides the Japanese version of Oracle Certified Master credentials for those who passed examinations and fulfilled other requirements. (I personally passed the tests necessary for ORACLE MASTER Gold Oracle Database, equivalent to Oracle Certified Professional (OCP), but I have not yet finished the seminar required.) Some other private credentials popular in Japan are Cisco Certification, Microsoft Certification Program, and PMP.
The former may not be well known in countries other than Japan. In Japan, there is an Act on Facilitation of Information Processing where the Ministry of Economy, Trade and Industry certifies people with a certain level of information technology skill. Japan Information-Technology Engineers Examination Center (JITEC) in IPA (Information-technology Promotion Agency) administers the examinations called Japan Information Technology Engineers Examination (JITEE). JITEE is very popular and well known in the Japanese information technology industry. According to JITEC, as of Spring 2010, the examination had been taken by over 15.40 million applicants but less than two million passed successfully.
JITEE has four different levels of examinations.
The lowest level is "Information Technology Passport Examination" to assess the minimum IT skill as a business person. You can take it as a web based test.
The second lowest level is "Fundamental Information Technology Engineer Examination" This is to test the basic skills for IT engineers. This is assessed with paper exams.
The second highest level is "Applied Information Technology Engineer Examination." This is to test the skills necessary for the intermediate level IT engineers.
The highest level has many categories of examinations such as Information Technology Strategist Examination, Project Manager Examination, and Information Security Specialist Examinations. As it is difficult to use only one set of examinations to assess the advanced level knowledge and skills, the examinations are separated into categories such as CIOs (Information Technology Strategist Examination), project managers (Project Manager Examination), and security specialists (Information Security Specialist Examinations). Some of the examinations require an essay, others require writing down the analysis based on a hypothetical situation. (I personally passed several of the JITEEs including Information Technology Strategist Examination which required an essay based on my experience and knowledge.)
Every year, an IT magazine publishes a very popular article on which credentials are necessary and which are not ("Iru Shikaku, Iranai Shikaku"). According to the 2012 version, the most popular JITEE is the Project Manager Examination and the most popular private qualifications are Oracle's Credentials and PMP.
There are two kinds of credentials. One is a governmental certificate and the other is a private qualification. You may be able to easily understand the latter. As in other countries, Oracle provides the Japanese version of Oracle Certified Master credentials for those who passed examinations and fulfilled other requirements. (I personally passed the tests necessary for ORACLE MASTER Gold Oracle Database, equivalent to Oracle Certified Professional (OCP), but I have not yet finished the seminar required.) Some other private credentials popular in Japan are Cisco Certification, Microsoft Certification Program, and PMP.
The former may not be well known in countries other than Japan. In Japan, there is an Act on Facilitation of Information Processing where the Ministry of Economy, Trade and Industry certifies people with a certain level of information technology skill. Japan Information-Technology Engineers Examination Center (JITEC) in IPA (Information-technology Promotion Agency) administers the examinations called Japan Information Technology Engineers Examination (JITEE). JITEE is very popular and well known in the Japanese information technology industry. According to JITEC, as of Spring 2010, the examination had been taken by over 15.40 million applicants but less than two million passed successfully.
JITEE has four different levels of examinations.
The lowest level is "Information Technology Passport Examination" to assess the minimum IT skill as a business person. You can take it as a web based test.
The second lowest level is "Fundamental Information Technology Engineer Examination" This is to test the basic skills for IT engineers. This is assessed with paper exams.
The second highest level is "Applied Information Technology Engineer Examination." This is to test the skills necessary for the intermediate level IT engineers.
The highest level has many categories of examinations such as Information Technology Strategist Examination, Project Manager Examination, and Information Security Specialist Examinations. As it is difficult to use only one set of examinations to assess the advanced level knowledge and skills, the examinations are separated into categories such as CIOs (Information Technology Strategist Examination), project managers (Project Manager Examination), and security specialists (Information Security Specialist Examinations). Some of the examinations require an essay, others require writing down the analysis based on a hypothetical situation. (I personally passed several of the JITEEs including Information Technology Strategist Examination which required an essay based on my experience and knowledge.)
Every year, an IT magazine publishes a very popular article on which credentials are necessary and which are not ("Iru Shikaku, Iranai Shikaku"). According to the 2012 version, the most popular JITEE is the Project Manager Examination and the most popular private qualifications are Oracle's Credentials and PMP.
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.
Monday, February 4, 2013
Isamu Kaneko - Japanese Aaron Swartz?
The tragic suicide of Aaron Swartz invoked a controversy over many issues including the ambiguity of the CFAA.
In Japan, there was a possibly comparable case called People v. Isamu Kaneko, or "Winny Case." Isamu Kaneko is a programmer who has a doctoral degree from Ibaraki University and was selected as a member of Exploratory IT Human Resources Project by the Information-technology Promotion Agency, Japan (IPA). As a programmer, he released a very innovative software in 2002 called Winny.
Winny is a P2P file sharing software which solved some of the problems the existing software had. (As the existing software was called win"MX", the software was called win"NY" using following letters of the alphabet.) The most innovative point is that Winny worked purely peer to peer. That means that Winny does not need any central server containing the information of the clients. Old P2P software had central servers and they often crashed, resulting in huge system failures. Without them, Winny network is very stable and reliable.
However, after Dr. Kaneko uploaded the software, it was welcomed by many Japanese Internet users who wanted to share video clips or music files with others. Of course, like Napster, most of such files are shared without authorization of rights holders. What happened is that the police found Dr. Kaneko as the symbol of the evil of copyright infringement and arrested him. In 2004, he was accused of the "assistance" of copyright infringement. Note that in Japan, although there is no general "conspiracy" crime, mental or physical "assistance" of an actual crime constitutes a crime.
The case continued for six years. After he was found guilty in the first instance court in Kyoto (December 13rd, 2006), he was found not guilty in Osaka High Court (October 8th, 2009). In Japan, the prosecutor may appeal to the judgment of an acquittal. The prosecutor appealed to the Supreme Court and on December 20th, 2011, the court rendered a 4 to 1 split judgment whereby the majority opinion affirmed the Osaka High court's acquittal. (We have a double jeopardy principle, but it is understood that the principle works only after the final and binding judgment.)
The majority opinion found that what he did was objectively an assistance to copyright infringement. However, Japanese criminal law requests subjective intent of committing a crime of assistance. As Dr. Kaneko did not recognize that "not exceptional percentage of users" were using Winny for copyright infringement, he was barely acquitted.
There are some criticisms. One is that the threshold for the crime of providers of neutral tools should be higher. Some contend that Winny can be used for both lawful and unlawful purposes like a knife. In a crime-filled neighborhood, not an exceptional percentage of buyers of knifes would use them as tools for crimes. According to the Supreme Court's standard, the knife seller would be guilty of assistance crime in this hypothetical. The opponents to the majority opinion contend that the threshold to find a tool provider to be guilty should be very high.
I am personally interested in another aspect of the case. From the arrest in 2004 and until acquittal in 2011, Dr. Kaneko needed to concentrate on defending the case, not on programming. That 5 years might have enabled him to develop other innovative software. This means that the prosecution itself might have deterred innovation. Considering Dr. Kaneko's case and Aaron Swartz case it may be safe to say that the prosecution should be decided with utmost caution when it comes to the leading-edge conduct of innovative people, considering the potential long-running damage to the society.
In Japan, there was a possibly comparable case called People v. Isamu Kaneko, or "Winny Case." Isamu Kaneko is a programmer who has a doctoral degree from Ibaraki University and was selected as a member of Exploratory IT Human Resources Project by the Information-technology Promotion Agency, Japan (IPA). As a programmer, he released a very innovative software in 2002 called Winny.
Winny is a P2P file sharing software which solved some of the problems the existing software had. (As the existing software was called win"MX", the software was called win"NY" using following letters of the alphabet.) The most innovative point is that Winny worked purely peer to peer. That means that Winny does not need any central server containing the information of the clients. Old P2P software had central servers and they often crashed, resulting in huge system failures. Without them, Winny network is very stable and reliable.
However, after Dr. Kaneko uploaded the software, it was welcomed by many Japanese Internet users who wanted to share video clips or music files with others. Of course, like Napster, most of such files are shared without authorization of rights holders. What happened is that the police found Dr. Kaneko as the symbol of the evil of copyright infringement and arrested him. In 2004, he was accused of the "assistance" of copyright infringement. Note that in Japan, although there is no general "conspiracy" crime, mental or physical "assistance" of an actual crime constitutes a crime.
The case continued for six years. After he was found guilty in the first instance court in Kyoto (December 13rd, 2006), he was found not guilty in Osaka High Court (October 8th, 2009). In Japan, the prosecutor may appeal to the judgment of an acquittal. The prosecutor appealed to the Supreme Court and on December 20th, 2011, the court rendered a 4 to 1 split judgment whereby the majority opinion affirmed the Osaka High court's acquittal. (We have a double jeopardy principle, but it is understood that the principle works only after the final and binding judgment.)
The majority opinion found that what he did was objectively an assistance to copyright infringement. However, Japanese criminal law requests subjective intent of committing a crime of assistance. As Dr. Kaneko did not recognize that "not exceptional percentage of users" were using Winny for copyright infringement, he was barely acquitted.
There are some criticisms. One is that the threshold for the crime of providers of neutral tools should be higher. Some contend that Winny can be used for both lawful and unlawful purposes like a knife. In a crime-filled neighborhood, not an exceptional percentage of buyers of knifes would use them as tools for crimes. According to the Supreme Court's standard, the knife seller would be guilty of assistance crime in this hypothetical. The opponents to the majority opinion contend that the threshold to find a tool provider to be guilty should be very high.
I am personally interested in another aspect of the case. From the arrest in 2004 and until acquittal in 2011, Dr. Kaneko needed to concentrate on defending the case, not on programming. That 5 years might have enabled him to develop other innovative software. This means that the prosecution itself might have deterred innovation. Considering Dr. Kaneko's case and Aaron Swartz case it may be safe to say that the prosecution should be decided with utmost caution when it comes to the leading-edge conduct of innovative people, considering the potential long-running damage to the society.
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.
Japanese Governmental CIO has no Legal Authority
It may be shocking but during a symposium on security on February 1,
2013, Japanese governmental CIO, Koichi Endo (former CIO and vice
president of RICOH Company, Ltd.) disclosed that he has no authority explicitly backed up by laws and regulations.
Mr. Endo is the first governmental CIO who took its office on October
2012. Before that there were CIOs of each ministry and governmental
agency but there was no governmental CIO supervising the total
information strategy of the whole government. As the government is
planning to introduce laws on national ID numbers, the necessity of an
integrated and coherent IT strategy became more and more essential.
This lead to the introduction of the governmental CIO under the Cabinet.
To play his role, the governmental CIO needs to obtain the planned
information strategy of each ministry and agency and then, considering
the harmonization with the governmental strategy and the coherency with
the plans of other ministry/agency, order the amendments of the plan.
However, currently, the governmental CIO has no legal authority to do
this.
Now, he is doing his job based on an ambiguous "general coordination function" the Cabinet has based on the Cabinet Act. But the extent of
his authority is unclear. Mr. Endo explained during the symposium that
sometimes the coordination between the ministries does not work
smoothly ("shocho kan no renkei ga sumuzu ni ikanai koto ga aru"). As a result, the government is trying to insert a clause into
the law whereby the governmental CIO is given a clear authority, which
will solve the problem.
Although the introduction of CIO is said to be future-oriented, another
past-oriented function is also important. There have been many problems
with respect to governmental systems such as the Patent Office's failure
of re-constructing its backbone system, which has caused the loss of
more than five billion yen (50 million dollars). Some people pointed out that the reason for the failure is ubiquitous in governmental IT procurement: low ability to manage the vendors, lack of comprehensive and written knowledge of their works, reluctance to BPR, and an immature level of process improvement.
If the problem is ubiquitous, then, it would be less effective to try to
improve the problem by each ministry/agency's own initiative. It would
be more effective for the governmental CIO to analyze the problem, show
how to solve the problem, and supervise the improvement process in each
governmental office/agency. I hope that the Diet will promptly amend
the law so that the CIO would have full authority to effectively perform
both of the functions.
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.
Sunday, February 3, 2013
How to Research Japanese Law in English
Some of you are interested in researching Japanese law or legal aspects of Japanese society either for fun or for the academic purpose.
Of course, there are bunch of resources written in Japanese available in libraries and also on line. And even though there are sites which offer search of Japanese papers and books in English, most of the results are those written in Japanese.
What should you do, if you cannot read Japanese? One way is to hire a Japanese lawyer. But it may not be feasible because of the cost (see below if your research is purely academic). Another way is to use a translation service such as Google Translate. However, especially in the legal area, the automatic translation is, in general, not very helpful. Another way is to use resources written in English. The following are a non-exclusive list of resources you can refer to for researching Japanese law in English.
1. Books
Curtis J. Milhaupt, J. Mark Ramseyer, and Mark D. West "The Japanese Legal System" is one of the few case books on Japanese law. This case book is used in Harvard Law School's Japanese law class. (One of the authors, Professor Ramseyer wrote a book entitled "Japanese Law," but it was published in 2001.)
Also, Hiroshi Oda's "Japanese Law" is an objective and succinct summary of Japanese law.
2. Laws and Regulations
Although there are books with translations of Japanese laws and regulations, there is a site run by the Japanese government which translates many laws and regulations called "Japanese Law Translations."
Note that the government put a disclaimer: "Only the original Japanese texts of the laws and regulations have [sic?] legal effect, and the translations are to be used solely as reference material to aid in the understanding of Japanese laws and regulations."
3. Cases and Court Opinions
In order to reach the rich world of Japanese court opinions, I recommend using Japanese legal databases (e.g., Hanrei Hisho, Daiichi-Hoki, LexisNexis Japan, and Westlaw Japan).
However, there are English summaries of more than 1000 supreme court case available on Supreme Court's site.
4. Journals
Australian Network for Japanese Law
Kobe University Law Review
Social Science Japan News Letter
5. Other Online Resoures
Transparency of Japanese Law Project
Temple University Japan Resources
Japan Focus
6. Assistance for Purely Academic Research
If you have a serious and purely academic reason to research Japanese law (such as if you are a Law School Student writing a paper on Japanese law), contact me through the contact form on the right column. I may be able to be of your help. I already assisted a student of a highly reputable American law school, when she researched on the Japanese legal aid system. (I do not intend to charge you anything as long as it is purely academic, but contact me with your real name with your school name to show that it is not commercial research assistance. Whether I will assist you or not is solely on my discretion and I may not be able to assist you when, for example, I am busy.)
"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.
Of course, there are bunch of resources written in Japanese available in libraries and also on line. And even though there are sites which offer search of Japanese papers and books in English, most of the results are those written in Japanese.
What should you do, if you cannot read Japanese? One way is to hire a Japanese lawyer. But it may not be feasible because of the cost (see below if your research is purely academic). Another way is to use a translation service such as Google Translate. However, especially in the legal area, the automatic translation is, in general, not very helpful. Another way is to use resources written in English. The following are a non-exclusive list of resources you can refer to for researching Japanese law in English.
1. Books
Curtis J. Milhaupt, J. Mark Ramseyer, and Mark D. West "The Japanese Legal System" is one of the few case books on Japanese law. This case book is used in Harvard Law School's Japanese law class. (One of the authors, Professor Ramseyer wrote a book entitled "Japanese Law," but it was published in 2001.)
Also, Hiroshi Oda's "Japanese Law" is an objective and succinct summary of Japanese law.
2. Laws and Regulations
Although there are books with translations of Japanese laws and regulations, there is a site run by the Japanese government which translates many laws and regulations called "Japanese Law Translations."
Note that the government put a disclaimer: "Only the original Japanese texts of the laws and regulations have [sic?] legal effect, and the translations are to be used solely as reference material to aid in the understanding of Japanese laws and regulations."
3. Cases and Court Opinions
In order to reach the rich world of Japanese court opinions, I recommend using Japanese legal databases (e.g., Hanrei Hisho, Daiichi-Hoki, LexisNexis Japan, and Westlaw Japan).
However, there are English summaries of more than 1000 supreme court case available on Supreme Court's site.
4. Journals
Australian Network for Japanese Law
Kobe University Law Review
Social Science Japan News Letter
5. Other Online Resoures
Transparency of Japanese Law Project
Temple University Japan Resources
Japan Focus
6. Assistance for Purely Academic Research
If you have a serious and purely academic reason to research Japanese law (such as if you are a Law School Student writing a paper on Japanese law), contact me through the contact form on the right column. I may be able to be of your help. I already assisted a student of a highly reputable American law school, when she researched on the Japanese legal aid system. (I do not intend to charge you anything as long as it is purely academic, but contact me with your real name with your school name to show that it is not commercial research assistance. Whether I will assist you or not is solely on my discretion and I may not be able to assist you when, for example, I am busy.)
"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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