Scanning Books and Copyright Law

In the United States, scanning books is becoming popular. Google Book project and its litigation has been an important topic of discussion. There are some services such as 1DollarScan which provides a scanning service for people who hate the burden of DIY scanning. In the U.S., scanning and copyright are discussed in the context of fair use. However, Japanese copyright law has no fair use clause. 

The most relevant clause is the Private Usage clause which excludes the individual's private reproductions from infringement (Article 30). But, it is questionable whether this clause is applicable to a third party scanning business. I believe that if a mother asks her son to scan a book for her own private usage, this would be lawful because of the private usage clause, as the son is deemed to be the hands and feet of his mother. However, it is not clear whether a third party business can be regarded as such and the answer might be negative.  There is no court opinion on this point. 

Last year, famous novel writers and manga artists including Jiro Asada, Keigo Higashino, Kenshi Hirogane, and Son Buron filed lawsuits against two Japanese scanning businesses. However, one of the defendants voluntarily acknowledged its responsibility and the other abandoned its business and the plaintiffs dropped the lawsuit. As a result, no court opinions were rendered. 

A recent new movement in this situation is the establishment of My Book Digital Council last month. This is a council to establish a rule on book scanning and a scheme of licensing for the reproduction (scanning) rights of a scanning business. What is important is that three of the four main founders of the council are on the rights holder's side: The Japan Writers' Association, Japan Photographic Copyright Association, and Japan Cartoonists Association. This initiative of the rights holder for the convenience of consumers itself should be positively evaluated. This will increase the convenience of the users especially because many Japanese people live in a very small apartments. (I used to live in an apartment less than 100 sq.ft.)   

However, the main question should be the concrete contents of the scheme. For example, the council implies that the copyright holders who agree with the scheme should charge a license fee to the scanning business. But if the license fee is too large, there might not be anyone wishing to use the scanning service. In addition, if the license given is a voluntary license, there still are problems determining whether the licensor is the owner of a particular work. (This can become complicated if a copyright is owned jointly, the work is a part of compilation, or the work is a derivative work.) If the system is complicated and needs a lot of time and money, the system would again not be widely used.  One possible scheme is a compulsory licensing system where the scanning business may scan any work they want as long as they pay (or deposit) a certain amount of money which is enough to incentivize the authors yet cheap enough to enable the scanning business to offer reasonable prices for the customers.  

Yet another important issue might be whether "scanning" is the best method of achieving the same convenience.  Some may argue that attaching a digital file with a paper book and promoting the sales of digital books might be better than promoting scanning.   In any event, I believe that the topic of scanning books is very interesting.

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.