In this entry, I will explain about the second category of issues listed as topics in the Japanese Copyright Reform by the Copyright Council. (See, for details, this article)
The following may not appear as surprising to those who are familiar with the U.S. copyright regulations. However, because regulations in Japan are far less restrictive compared to that of the U.S., these topics are very important. I will add some comments about these topics imply in terms of expansion of regulations.
(2) Issues Related to Digitization
2-1 Review of Exception Statutes for Digital Age
* Consider the expansion of Statutory exemption regarding reproductions created in the process of telecommunication (such as caching), temporary data storage that happens in devices, reproductions for the purpose of maintenance etc.
Currently, Japanese copyright law does not regulate "temporary" data storage under reproduction rights. For example, there is a case by Tokyo District Court where data caching to a RAM in a broadcast set top box was ruled to be outside the scope of reproduction right.
Discussion the establishment of “exemption regarding reproduction rights” means, as its premise, that the law will term to expand the scope of reproduction rights and have them regulate “temporary” data storage.
The government has considered this topic twice in the past. And in both cases, they decided not to extend the scope of reproduction rights, because they saw little need for it at those times. However, this time, the Copyright Council has formed a small working team to reconsider this issue.
In Japan, because there is a statute regulating upload of files (“making available” rights) and public transmission, there is not much space left that are unregulated in cyberspace. As Mark Lemley points out in this article (Mark A. Lemley, “Dealing with Overlapping Copyrights on the Internet,” 22 Dayton L. Rev. 547 (1997)), with making available rights, there may be far less need in Japan to regulate caching and other temporary reproductions.
2-2 Review of Regulations regarding Technological Protection Measures
* Given the diversification of technological protection measures in accordance with changes in copyright distribution, discuss the amendment protection toward technological protection measure, or, anti-circumvention regulations.
Anti-circumvention regulation in Japan is relatively narrow compared to those in the U.S. Copyright law does not regulate any circumvention of access control, because controlling access is not part of copyright. (Technological protection measures used to control access to copyrighted materials are protected under the Unfair Competition Prevention Law in Japan.)
Japanese Copyright law only regulates usage control (technological protection measures that allow copyright owners to protect the exploitation of their copyright. Also, the effect of the circumvention of technological protection measure is to lose the entitlement to the “private exploitation exemption.” Therefore, for example, circumvention for the purpose of fair use or research is allowed in Japan.
The Copyright Council, however, may be considering the expansion of the scope of anti-circumvention regulations. Details are not yet clear at this point.
2-3 Preparation for the Proposed WIPO Broadcast Treaty
* Given the discussion made in WIPO regarding the proposed Treaty for the Protection of the Rights of Broadcasting, Cablecasting and Webcasting Organizations, discuss whether to grant a right to broadcasters regarding pre-broadcast data and distribution rights of broadcast programs.