As was reported in the March 2010 edition of Managing IP, amendments to the Copyright Act of Japan came into force in January 2010. This article will highlight the reform to the ruling system (Saitei Seido system) that allows use of a copyrighted work, the owner of which is uncertain, under Article 67 of the Copyright Act.
Under this system, if a ruling is granted by the commissioner of the Agency for Cultural Affairs, an applicant will be able to use such work where a) the work has been available to the public for a long time, b) the applicant is unable to contact the copyright owner because the copyright owner is unidentified or for other reasons, and c) upon a showing of "considerable effort" by the applicant to locate the copyright owner. The system has existed for quite some time; however, it has not been widely used. There are several noteworthy points concerning the reform. Firstly, under the reform, the "considerable efforts" requirement has been clarified as follows:
- the applicant has inspected publications designated by the authority which list a wide range of copyright owners;
- the applicant inquires with copyright management organisations or other persons that are designated by the authority to retain information about rights holders; and
- the applicant publicly requests information about the copyright holder in the manner designated by the authority.
Secondly, even before the issuance of a favourable ruling by the commissioner, the applicant may begin to use the copyrighted work for which application is made by providing a security deposit in advance. While it is very difficult to estimate the specific amount of this deposit, it should be equivalent to the reasonable royalty, for example, ranging from a nominal amount to tens of thousands of US dollars.
According to the Cultural Affairs Agency, a ruling would be granted within approximately one to three months after the filing of an application.
Lastly, the scope of the ruling system expands the case where related rights owners (for example, performers and singers) are identified. The ruling system did not previously allow for obtaining a compulsory licence against all related rights owners if the interests of such persons were involved. In practice, secondary use of vintage television programmes poses substantial challenges because, typically, there were no agreements with copyright holders and related rights holders governing secondary use of such programmes. In contrast, for recent television programmes, the ownership of copyrights and related rights to such programmes, including their secondary use, is generally dealt with at the outset through contractual agreements. Since it is impractical to locate related rights holders and obtain their consent to secondary use of such vintage programmes, the ruling system was of limited value with respect to secondary use of such programmes on the internet, even though demands for secondary use of such contents have markedly increased. Due to the recent reform, since it will be possible to obtain a compulsory licence from related rights owners through the ruling system, increased use of the system as well as a boost in secondary use of television programmes on the internet is expected.
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| Yoshikazu Tagami |
Anderson Mori & Tomotsune
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