Copyright Division, Agency for Cultural Affairs

1. Introduction

The “Act to Partially Amend the Copyright Act” was enacted on May 26, 2021 at the 204th Ordinary Session of the Diet, and was promulgated on June 2, 2021 as Act No. 52 of 2021.

2. Purpose of Amendment

This amendment has two points:

(1) Review of the provisions of library-related limitations of copyrights; and

(2) Facilitation of the processing of copyrights, such as the simultaneous Internet distribution of broadcast programs.

As for (1), based on the “Report on the Review of the Library-Related Provisions on the Limitations of Copyrights (corresponding to digital networks)” compiled by the Copyright Subcommittee of the Council for Cultural Affairs in February 2021, the following will make it possible to improve access to information by the public and to promote sustainable research activities:

①The National Diet Library will be allowed to send through the Internet materials difficult to obtain generally because they are out of print and other reasons such as those without the authorization of copyright holders so that they can be viewed from each household.

②Each library or similar facility will be allowed to transmit some library materials to the public even without the authorization of copyright holders by paying compensation under certain conditions.

As for (2), based on the “Report on the Facilitation of the Processing of Rights Relative to Simultaneous Internet Distribution of Broadcast Programs” compiled by the Copyright Subcommittee of the Cultural Council in February 2021, the following comprehensive measures will be taken to realize the smooth processing of copyrights similar to that of broadcasting from the viewpoint of the viewers’ convenience and the promotion of content industry:

1. Expansion of provisions on the limitations of copyrights;
2. Creation of provisions on the presumption to include authorizations;
3. Facilitation of the use of records / recorded performances;
4. Facilitation of the use of picture performances; and
5. Expansion of an arbitration system in case of failure of agreement

3. Outline of Amendment

From here, we would like to explain in detail about (1), which seems to be particularly relevant to people with disabilities, and for (2), we shall outline the contents of the amendment.

(1) Review of the provisions of library-related limitations of copyrights

a. Internet transmission of out-of-print materials [cf. New Act, Article 31, Paragraph 8, etc.] by the National Diet Library to individuals:
According to Article 31, Paragraph 3 of the Act, it is possible for the National Diet Library to transmit digitized out-of-print materials (out of print and other materials that are difficult to obtain due to similar reasons), without the authorization of copyright holders, via the Internet to other libraries or similar facilities, which may reproduce and make available portions of it to the users.

In this respect, this paragraph revealed a concern that access to rare or out-of-print materials was difficult when physical access to a library or similar facility was not possible.Data for rare or out-of-print materials can only be sent to other libraries or similar facilities, and the public could not access that data without visiting such a facility.However, if the library or similar facility is closed for infectious disease control, if it is difficult to visit such a facility due to illness or disability, or if there is no such facility in the neighborhood in the first place, then having access to a library or similar facility is not possible.

This amendment is to make it possible for the National Diet Library to send out-of-print materials through the Internet directly to users without the authorization of copyright holders under certain requirements.The users are allowed to (i) reproduce (print out) the materials transmitted through the Internet to the extent deemed necessary for his/her own use, and (ii) transmit the materials to the public free of charge or use a display for non-profit purposes.

b. Transmission of library materials by a library or similar facility to the public [cf. New Act, Article 31, Paragraph 2]
According to Article 31, Paragraph 1, Item No. 1 of the Act, the National Diet Library, public/university libraries or similar facilities are allowed to reproduce and provide library materials as non-profit businesses at the request of users conducting research without the authorization of copyright holders, and limited to a copy of a part of the work per person.

In this respect, this article of the Act permits the reproduction and the provision of a copy (transfer), but the transmission of materials to the public by fax or e-mail from a library or similar facility was not permitted.Therefore, it took a long time for users to obtain a copy and the people’s access to information was not sufficiently secured by the use of advanced digital network technology.

Therefore, in this amendment, a copy of library materials, which was previously available on paper, can be transmitted to the public by the National Diet Library or public/university libraries without the authorization of copyright holders.However, while it becomes possible for the public to easily and quickly obtain and browse through copies of materials in places other than libraries or similar facilities, the impact on copyright holders will surge.Therefore, from the viewpoint of protecting copyright holders, the following measures (i) to (iv) will be undertaken.

(2) Facilitation of copyright processing for the simultaneous Internet distribution of broadcast programs (simultaneous broadcast distribution, etc.)

1. Expansion of provisions on the limitations of copyrights [cf. New Act, Article 34, Paragraph 1]
   Since the use of simultaneous broadcast distribution can be treated in the same way as that of broadcasting, the provisions for the limitations of copyrights relative to broadcasting (New Act, Article 34, Paragraph 1; Article 38, Paragraph 3; Article 39, Paragraph 1; Article 40, Paragraph 2; Article 44; and Article 93) can all be applied to simultaneous broadcast distribution.

2. Creation of provisions on the presumption to include authorizations [cf. New Act, Article 63, Paragraph 5]
   From the viewpoint of making a one-stop copyright processing for broadcasting and simultaneous broadcasting, the provision states that:
   If a person, who may authorize another person to broadcast or cablecast a work or transmit a work via simultaneous broadcast distribution, has authorized a broadcaster that undertakes simultaneous broadcast distribution as a measure to publicize this fact, to disclose information specified by the Commissioner for Cultural Affairs as information concerning the status of implementation of simultaneous broadcast distribution by a method specified by the Commissioner for Cultural Affairs to exploit the work in broadcast, the authorization is presumed to include authorization to transmit the work via simultaneous broadcast distribution, unless the person manifests an intention to the contrary upon granting the authorization.

3. Facilitation of the use of records / recorded performances [cf. New Act, Article 94-3, Article 96-3]
   Likewise,  in measures regarding the use of records / recorded performances in broadcasting (Act, Articles 95 and 97), the provisions have been established relative to the performances recorded in commercial records or other commercial records, stating that the broadcaster may pay compensation equivalent to the amount of the normal usage fee and perform simultaneous broadcasting distribution, unless they are managed by a copyright management service provider or the information has been published about the copyright holders by the method specified by the Commissioner for Cultural Affairs.

4. Facilitation of the use of picture performances [cf. New Act, Article 93-3 and Article 94]
   Similar to the measures regarding the use of picture performances in broadcasting (Act, Article 94 [New Act, Article 93-2]), when the performer authorizes simultaneous broadcasting of the picture performance for the first time, the broadcaster may pay compensation equivalent to the amount of normal usage fee and perform simultaneous broadcasting distribution, if there is no special provision in the contract authorizing the distribution, unless the performance is managed by the copyright management service provider and the information on the copyright holders of the performances by the method specified by the Commissioner for Cultural Affairs will be provided (Article 93-3 of the New Act).  Also, even if you have not obtained authorization such as the first simultaneous broadcast distribution, unless otherwise specified in the contract, if you cannot contact the performer even if you take certain measures to do so, by paying compensation equivalent to the normal usage fee to the copyright management service provider designated by the Commissioner for Cultural Affairs, it is possible to perform simultaneous broadcast distribution without prior authorization (New Act, Article 94).

5. Expansion of an arbitration system in case of failure of agreement [cf. New Act, Article 68]
   Regarding an arbitration system in case of failure of agreement on broadcasting a work, even if the agreement on simultaneous broadcast distribution of the work failed, the scope of the system can still be used.

(*) For details of the provisions of this law, please refer to:
https://www.bunka.go.jp/seisaku/chosakuken/hokaisei/r03_hokaisei/

(*) In this paper, the current Copyright Act is simply described as Article X of the Act, and when the provisions of the Copyright Act after amendment by this Act are shown, the provisions on the day when they are fully enforced are described as Article X of the New Act.