As reported in the September 2009 issue, whether Japan should introduce a general concept of fair use was discussed at a sub-committee of the Agency of Cultural Affairs (Bunka-cho). In the autumn of 2009, the sub-committee had to cease official discussions because of a great divergence in opinions and it therefore constituted a working group to continue discussions. In January 2010, the working group submitted a report that recommended introducing the general concept of fair use. As a result, the sub-committee came to a general agreement to restart discussions to introduce the general concept of fair use for limited purposes. Parody use was clearly excluded from the discussion. On May 27 2010, the sub-committee published an interim report that recommended introducing the general concept of fair use. The report suggests the following uses of copyrighted works will be included in the general concept of fair use:
- Use of a copyrighted work that is incidentally accompanied by other activities whose primary purpose is not to use the copyrighted work and which can be deemed as relatively negligible from a quantitative or qualitative perspective under socially accepted conventions.
An example being inclusion of an artistic work incidentally taken in a photograph or in a cinematograph film
- Use of a copyrighted work that is deemed reasonably necessary to achieve the lawful use of a copyrighted work.
Examples include reproduction of a musical work to a master tape in the intermediate process of an authorised CD production or reproduction of a comic character image in the intermediate process of merchandising a comic character.
- Use that is not deemed to derive a benefit from a copyrighted work through perceiving an expression of the relevant work, considering the types and uses of the work in general as well as the purpose and manner of such use, an example being recording video or sound for the purpose of developing and testing technologies to replay the video or sound.
The sub-committee's interim report states that (C) relates to inevitable data reproduction for online services where it is not intended for such data reproduction to be perceived (watched, listened to, etc).
The foregoing three types will be subject to an additional requirement that the relevant use shall not unfairly impair the benefits of copyright holders under socially accepted conventions.
As occurred last year, many copyright holders continue to object to introducing a general concept of fair use.
The interim report will be subject to public comments through June 2010 and a hearing from copyright holder organisations and online service companies. The sub-committee plans to prepare a final report by January 2011.
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| Takashi Nakazaki |
Anderson Mori & Tomotsune
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