Forum

Japan needs a Fair Use exception.

I've been following Yamada Taro margainally since his election and he's actually a very good-faith politician with an unusual focus on anime, manga, games, toku, and artistic entertainment in general. He's been the government's go-to for matters relating copyright in the fandom and dealing with stingy newly-implemented copyright laws (TPP stipulations) in Japan, as well as dealing with censorship and suppressing marketing of certain types of work for the Olympics (his election predicated on protecting freedom of expression in art and so he's been trying to find a way to comply with the party's demands without restricting expression in things like manga on the shelves). He's a big fan of these things himself and his words here reflect that well, I believe. Despite the backlash, I'm pretty confident he's going to use this as an opportunity NOT to add restrictions to cosplay, but to make the current restrictions more set in stone/clear so that cosplayers understand their rights and how to avoid potential lawsuits.

Can someone who knows about the history of Fair Use tell me where and how did this emerge in the first place? It may assist in understanding why Japan does not have a Fair Use exception.

@Juno016

ah, that explains the random middle finger to jasrac.

it sounds to me like he wants to protect the cosplayers too, like if you get permission that the permission does not get retroactively taken off, for example.

xxmsxx wrote:

Can someone who knows about the history of Fair Use tell me where and how did this emerge in the first place? It may assist in understanding why Japan does not have a Fair Use exception.

[note: long rambling answer ahead, mostly writing this off the top of my head with no organization or editing. Just researching to find citations to back stuff up and make sure that I'm remembering it all correctly.]

Most countries don't have fair use. Most people equate "Fair Use" with "copyright exceptions," but this isn't quite accurate. Fair Use Doctrine is a special way of looking at copyright exception. It's also a whole other discussion that I will get into later...

History of Fair Use: https://en.wikipedia.org/wiki/Fair_use#History
Or if you want to read a 45 page paper about the history of fair use: https://lawecommons.luc.edu/cgi/viewcontent.cgi?article=1157&context=facpubs

The Berne Convention is the primary international treaty for copyright. WIPO, TRIPS and TPP are important, but everything you need to know about international copyright agreements for the purpose of casual discussion is the Berne Convention. You can read more about it here: https://en.wikipedia.org/wiki/Berne_Convention, or read the full text here: https://www.law.cornell.edu/treaties/berne/

Japan is a signatory of the Berne Convention, which requires it's signatories to have specific exceptions to copyright law, in the United States these are called "fair use" The term "Fair Use" is American, so the first reason other countries don't have "fair use," is because they just call it something different ("Fair Dealings" in many countries). But the difference between "Fair Use" and "copyright exceptions" is more than just a name. I'll bring up "Fair Use Doctrine" later (ie: over the weekend, because this is gonna be long).

Berne Convention wrote:

Article 9 (1) Authors of literary and artistic works protected by this Convention shall have the exclusive right of authorizing the reproduction of these works, in any manner or form.

(2) It shall be a matter for legislation in the countries of the Union to permit the reproduction of such works in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author.

(3) Any sound or visual recording shall be considered as a reproduction for the purposes of this Convention.

Article 10 (1) It shall be permissible to make quotations from a work which has already been lawfully made available to the public, provided that their making is compatible with fair practice, and their extent does not exceed that justified by the purpose, including quotations from newspaper articles and periodicals in the form of press summaries.

(2) It shall be a matter for legislation in the countries of the Union, and for special agreements existing or to be concluded between them, to permit the utilization, to the extent justified by the purpose, of literary or artistic works by way of illustration in publications, broadcasts or sound or visual recordings for teaching, provided such utilization is compatible with fair practice.

(3) Where use is made of works in accordance with the preceding paragraphs of this Article, mention shall be made of the source, and of the name of the author, if it appears thereon.

Article 10bis (News Coverage)
(1) It shall be a matter for legislation in the countries of the Union to permit the reproduction by the press, the broadcasting or the communication to the public by wire, of articles published in newspapers or periodicals on current economic, political or religious topics, and of broadcast works of the same character, in cases in which the reproduction, broadcasting or such communication thereof is not expressly reserved. Nevertheless, the source must always be clearly indicated; the legal consequences of a breach of this obligation shall be determined by the legislation of the country where protection is claimed.

(2) It shall also be a matter for legislation in the countries of the Union to determine the conditions under which, for the purpose of reporting current events by means of photography, cinematography, broadcasting or communication to the public by wire, literary or artistic works seen or heard in the course of the event may, to the extent justified by the informatory purpose, be reproduced and made available to the public.

US Legal Code Title 17, Chapter 1, Sec 106 wrote:

Limitations on exclusive rights: Fair use
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include -

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors

Japan has implemented the copyright exceptions required by the Berne Convention, but doesn't call them "Fair Use." So when people say that "Japan doesn't have fair use," this is true because 1) Japan doesn't call it fair use (I'm going to keep kicking this horse), and 2) Japan hasn't implemented all the exceptions that exist in some countries. However it's misleading because Japan isn't some sort of oddity here, and they do have all the exceptions that they are required to have.

Here's an excerpt of the Japanese exceptions:

Copyright Law of Japan, Chapter 2 wrote:

Article 32: Quotations
(1) It shall be permissible to make quotations from a work already made public, provided that their making is compatible with fair practice and their extent does not exceed that justified by purposes such as news reporting, criticism or research.
(2) It shall also be permissible for the press or other periodicals to reproduce informatory, investigatory or statistical data, reports and other works of similar character which have been prepared by organs of the State or local public entities, independent administrative organs or local independent administrative organs for the purpose of public information and which have been made public under their authorship, provided that the reproduction thereof is not expressly prohibited.

Article 39: Reproduction, etc. of articles on current topics
(1) It shall be permissible to reproduce in the press, to broadcast and diffuse by wire articles published in newspapers or periodicals on current political, economic or social topics, not having a scientific character, or to make the interactive transmission (including the making transmittable by means of inputting information to an interactive transmission server already connected with telecommunication networks for public use) of such articles simultaneously upon receiving such broadcasts, exclusively for the purpose of reception within service areas intended for by such broadcasting; provided that such reproduction, broadcasting, wire diffusion or making the interactive transmission thereof is not expressly prohibited.
(2) It shall also be permissible to communicate publicly, by means of a receiving apparatus, articles thus broadcast, diffused by wire or of which the interactive transmission has been made.

Article 41:Reporting of current event
Article 41. For the purpose of reporting current events by means of photography, cinematography, broadcasting or otherwise, it shall be permissible to reproduce and exploit a work involved in the event or a work seen or heard in the course of the event, to the extent justified by the informatory purpose.

Subsection 5 of the Copyright law of Japan is basically their version of fair use. It's much longer than the US Fair Use clause.

The most notable item missing from Japan's copyright exceptions versus the exceptions that exist in many other countries is parody; Japan has no parody exception. A parody exception to copyright is not required by the Berne conventions, but many nations have implemented one.

Overall, Japan isn't some sort of exception here. Each country handles copyright exceptions differently. US Fair Use Doctrine is fairly unique and extremely flexible. As another example, you can read this article about French copyright law, section 7 of that article explains all the exceptions to copyright that exist in France. They don't call it "Fair Use" either.

So when people keep saying "Japan doesn't have fair use," they aren't wrong... but they are probably ignorant, unless they truly understand the difference between fair use doctrine and copyright exceptions (in which case they would say "America is special, they have fair use.")

Seeing the first several posts on this topic, I'd be really interested to see an article specifically comparing and contrasting the Japanese copyright system with that of other countries (particularly the US in my case, but it'd be interesting to see the differences between other countries as well).

On the one hand, this is an obvious grey area that could use a lot of clarification for the digital age, and Yamada Taro seems like a politician with a good head on his shoulders. On the other hand, I have absolutely no confidence in any change in copyright not hugely benefiting the established, corporate players that can afford the strongest lobbyists.

Ryujin99 wrote:

Seeing the first several posts on this topic, I'd be really interested to see an article specifically comparing and contrasting the Japanese copyright system with that of other countries (particularly the US in my case, but it'd be interesting to see the differences between other countries as well).

It's an interesting idea. A general comparison of "Japan to the World," would be way outside our scope, and way to big for a single article. But a comparison of Japan to the USA would be feasible, of course, we would only focus on the aspects that are topical to our readers. We wouldn't look at all the differences in copyright, just the differences that affect anime industry and fans.

Maybe over time we could create new versions for other countries.

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