Amendment of the Copyright Law in the 2020 Ordinary Diet Session
Oct 27, 2020
The “Act for Partial Revision of the Copyright Act and the Act on Special Provisions for the Registration of Program Works” was enacted on June 5, 2020 at the 201st Ordinary Session of the Diet, and was promulgated on June 12, 2020 as Act No. 48 of 2020.
Among the items to be amended by the Act, measures to facilitate the exploitation of copyrighted works, such as measures against reach sites and expansion of the scope of the provision on restriction of rights in relation to photoshopping, will be enacted as of October 1, 2020, with regard to (i) measures to facilitate the exploitation of copyrighted works, such as measures against leach sites and expansion of the scope of the provision on restriction of rights in relation to photoshopping, (ii) measures to appropriately protect copyrighted works, such as illegal downloading of infringing content and strengthening the protection of access control, and (iii) measures to prevent the downloading of infringing content. With regard to the measures for the protection of persons with disabilities, it will come into effect on January 1, 2021, and with regard to the establishment of a new certification system for program registration, it will come into effect on the date specified by a governmental ordinance within one year of its promulgation.
Purpose of the amendment
Based on the “Report of the Copyright Subcommittee of the Council for Cultural Affairs” of February 2019, this Act takes measures for appropriate protection of copyrights, etc. including anti-piracy measures on the Internet and measures to facilitate the use of works, etc., in order to appropriately respond to recent changes in social conditions surrounding works, etc. The specific amendments are as follows The specific amendments are as follows
Strengthening of anti-piracy measures on the Internet
Measures against reach sites
(2) Illegal downloading of infringing content
2. Other amendments
(1) Measures to ensure the smooth use of copyrighted works
(1) Expansion of the scope of the provision on restriction of rights in relation to image taking
(2) Development of regulations limiting rights in administrative procedures (related to the Geographical Indication Act and the Plant Variety Protection and Seeds Act)
(iii) Introduction of a countervailing system for the right to use copyrighted works
(2) Measures for adequate protection of copyright
(iv) Strengthening the procedure for collecting evidence in copyright infringement suits
(v) Strengthening Protection for Access Control
(6) Development of a registration system for program works (Law on Special Provisions for Program Registration)
This is a provision that restricts the rights of the copyright holder and provides for exceptional situations in which the copyright holder can use the copyrighted work without his/her permission.
Background of the amendment (actual conditions of piracy damage, etc.)
In recent years, the damage caused by piracy on the Internet has become increasingly serious, and there is a risk of irreparable damage to creators and content industry unless measures are taken. According to estimates by related organizations, the huge piracy site “Manga-mura” has read about 300 billion yen worth of publications for free, resulting in a significant decrease in revenues and sales of cartoonists and publishers, while “Haruka Yume no Zashi,” one of the largest reach sites in Japan, has caused damage of about 73.1 billion yen per year.
Even after the closure of these sites, a huge number of pirate sites still exist, and as of November last year, the total number of monthly users of the top 10 sites in the publishing field reached 65 million (as of April this year, the total number of users of the top 10 sites increased to about 87 million).
The damage caused by piracy is not limited to comics and magazines, but includes all kinds of works such as photo collections, literary and technical books, business software, games, academic papers, and newspapers.
In light of the actual damages, the Act provides for (1) regulation of “reach sites” that lead users to the infringing contents and (2) expansion of the scope of illegal downloading of infringing contents to more effective measures against piracy.
These measures will make it possible to directly regulate the reach sites that exist, and will greatly reduce users’ access to infringing content. As for downloading of infringing content such as manga, more than 90% of respondents answered that they would “stop” or “reduce” downloading in the event of illegalization or criminal penalties, according to a questionnaire conducted in October 2019, and we believe that the amendment will have a similarly significant effect.
Outline of the amendment
(1) Strengthening measures against piracy on the Internet
(1) Reach site measures [related to Article 113, Paragraphs 2 to 4, Article 119, Paragraph 2, Items 4 and 5, Article 120-2, Item 3, etc.]
The Act regulates “reach sites” and “reach apps” that aggregate information about links to infringing content and lead users to the infringing content.
Specifically, the law defines malicious reach sites and reach apps as “those that specifically induce the public to view infringing works, etc.” and “those that are used primarily for the public’s use of infringing works, etc.” and criminal penalties (up to 5 years’ imprisonment, etc.: the crime of confession) are imposed on the act of operating a reach site or providing a reach app. At the same time, the act of providing links to infringing content on reach sites and reach apps is deemed to be an infringement of copyrights and is subject to civil measures and criminal penalties (such as imprisonment of up to three years: the crime of confession).
(2) Illegal downloading of infringing contents [related to Article 30, paragraph 1, items 4 and 2, and Article 119, paragraph 3, items 2 and 5].
This is a proposal to expand the restriction on downloading of illegally uploaded works (even for private use) from music and video to all works (comics, books, articles, computer programs, etc.).
From the viewpoint of striking a balance between “ensuring the effectiveness of anti-piracy measures” and “preventing people from atrophying in the legitimate collection of information”, the proposed amendment will restrict the scope of the regulation to cases of knowingly downloading with the knowledge of illegal uploading, as well as to cases of (i) screenshots (see (2) below), (ii) (ii) “minor works” such as one to a few panels of manga, (iii) derivative works and parodies, and (iv) “cases where there are special circumstances that are deemed not to unfairly harm the interests of the copyright holder” are excluded from the regulation. As for the criminal penalties, it is limited to the cases of repeated and continuous downloading of copyrighted works that are made available for a fee.
In addition, the Supplementary Provisions of the Act provide for enhancement of public awareness and education, promotion of mark-granting to legitimate websites by related businesses, and consideration of criminal penalties, to address the concerns and anxiety of the public from the operational aspect as well.
History of the discussion on this issue
In the last year, there were two reasons for not submitting this bill: (1) there was a growing concern that the daily use of the Internet by the people would diminish, and (2) cartoonists argued that the scope of illegalization was too broad.
Since then, we have carefully listened to the opinions of the public and discussed the issue.
In addition, we established a panel of experts consisting of cartoonists, publishers, consumers, Internet users, academics and lawyers who have various opinions, to intensively discuss the draft amendment that strikes a balance between “ensuring the effectiveness of anti-piracy measures” and “preventing the citizens from atrophying in their legitimate information gathering”.
As a result, as mentioned above, we decided to establish provisions for exclusion from the subject of illegalization and for consideration of operational aspects in the Supplementary Provisions. The joint statement by the Japan Cartoonists Association and the Japan Center for Publications and Publicity states that “the proposed amendments are well-balanced in that they do not easily invite evasion of the law and do not cause undue atrophy among good users”.
(2) Other amendments
(i) Expansion of the scope of the provision on limitation of rights in relation to taking pictures [related to Article 30-2].
In response to the changes in social reality, such as the rapid spread of smartphones and tablets and the development of video delivery platforms, the scope of the provision on the restriction of rights related to photoshopping will be expanded.
Specifically, the proposed amendment will: (i) expand the scope from “taking pictures”, “recording”, and “recording” to all kinds of copying and transmission (e.g. screenshot, live transmission, and computerization), (ii) extend the scope to include taking pictures in situations where acts are not considered to be creative (e.g. taking pictures with a fixed camera), and (iii) extend the scope to include taking pictures of the main subject matter of the If a work is attached to a subject, it can be a work that is not difficult to separate (e.g., a stuffed animal held by a child), which means that actions that are generally taken in daily life will be widely accepted. On the other hand, the existing requirements of incidentality and insignificance will be maintained and a new requirement of “within a legitimate range” will be established to prevent abusive use and use that harms the market of the right holder.
(2) Improvement of the Provisions on Restriction of Rights in Administrative Procedures (related to the Geographical Indication Act and the Seeds and Seeds Act) [related to Article 42 paragraph (2)].
In the past, it has been allowed to make copies, etc. of documents, etc., necessary for patent examination procedures, etc., without the right holder’s permission, so that (i) registration of geographical indications under the Geographical Indications Act (GI Act) and (ii) registration of plant varieties under the Plant Variety Protection and Seedling Act can be carried out promptly and accurately, and it has been allowed to make copies, etc., of documents, etc., without the right holder’s permission. In addition, it allows for the duplication, etc., of the documents that have been made available to the public. In addition, it is possible to add procedures as needed by the Cabinet Order to respond flexibly in the future when it becomes clear that there are administrative procedures that require similar measures.
Introduction of a countermeasure system concerning the right to use a copyrighted work [related to Article 63-2].
In the past, if a licensee used a copyrighted work under the permission of the copyright holder, he or she could not assert the right to use the work against the copyright assignee, etc., and might not be able to continue to use the work. In order to solve such a situation, and to enable licensees to continue to use their works with peace of mind, the proposal is to introduce a system that allows the right of exploitation to be challenged against the assignee of the copyright (similar to the case of non-exclusive licenses under the Patent Law, it is not necessary to have requirements such as registration to challenge the right of exploitation).
(iv) Strengthen the procedure for collecting evidence in copyright infringement suits [related to Article 114-3].
From the perspective of making the order to submit documents more effective in copyright infringement suits, the procedures will be strengthened.
Specifically, similar to the amendment to the Patent Act in 2018, (i) the court will be able to see the actual documents before deciding whether or not it is necessary to issue an order to submit the documents so that the court can make an appropriate decision on whether or not to issue the order to submit the documents and (ii) for highly specialized documents, the court will be able to receive support from expert committee members (e.g., university professors) in making a decision based on seeing the actual documents.
(v) Strengthening of protection for access control [related to Article 2, Paragraph 1, Items 20 and 21, Article 113, Paragraph 7, Article 120-2, Item 4, etc.].
In order to protect access control to prevent unauthorized use of contents, the regulations will be revised to accommodate the latest technology such as license authentication using serial codes.
Specifically, as with the amendment to the Unfair Competition Prevention Law in 2008, the proposed amendment will: (i) revise the definition of “access control” (to clarify that the latest technology such as license authentication is included in the scope of protection); and (ii) regulate the provision of unauthorized serial codes to bypass the use of license authentication, etc. (to be added to the list of acts deemed to constitute copyright infringement).
Establish a registration system for program works (Law on Special Provisions for Program Registration)
Article 4, Article 26, etc. of the Law on Special Exceptions to Program Registration
With regard to the registration system for program works, the regulations will be improved based on the needs of the parties concerned and the request from the “designated registration organization” (Software Information Center) designated by the Commissioner of the Agency for Cultural Affairs.
Specifically, (i) in order to contribute to smoothing the burden of proof in lawsuits, etc., we will introduce a system that allows copyright holders, etc. to request proof of the identity of a program work that they own (pending lawsuits, etc.) and a program work that they have registered in advance (this will make it easier to prove the factual relationship (e.g., date of creation) by registration. In the case of the registration by the government and independent administrative agencies, the exemption from fees will be abolished.
Among the amendments made by this Law, as of “October 1, 2020”, with regard to (1)(1)(i) (Measures to facilitate the use of reach sites) and (2)(i) to (iii) (Measures to facilitate the use of copyrighted works), as of “October 1, 2020”, (1)(ii) (Making it illegal to download infringing contents) and (2)(iv), (v), (iv), (v) and (vi)(ii) (Measures to ensure the appropriate protection of copyrights, etc.) are revised as follows (i) above (i) (establishment of a new certification system for program registration) will come into effect on “January 1, 2021”, and (ii) (i) (establishment of a new certification system for program registration) will come into effect on “a date specified by a Cabinet Order within a period not exceeding one year from the date of promulgation”.
Q&A of the revised law
(1) Strengthening measures against piracy on the Internet
Measures against reach sites
Q1: What kinds of websites and apps will be regulated to prevent reach sites and reach apps? Will general bulletin boards and social networking sites also be regulated?
Based on the fact that the provision of links on the Internet plays an extremely important role in the distribution of information, the amendment excludes general bulletin boards and social networking sites from the scope of regulation, and defines reach sites and reach apps as (1) “infringing on the public” and (2) “infringing on the public” from the perspective of not allowing illegal activities by malicious sites. It is divided into two types: (1) those that specially induce copyrighted works, etc., and (2) those that are mainly used for the use of infringing works, etc. by the public.
The first type is assumed to be a case where a website operator creates a design or display content for the purpose of guiding users to the infringing contents, while the second type is assumed to be a case where a user posts many illegal links on a bulletin board or other posting type website, resulting in encouraging the use of the infringing contents. It is assumed that this is the case.
If there is a dispute as to whether or not a specific site/application falls under this category, the final decision will be made by the judiciary, but in general terms, for example, although there are a lot of links to legal content in terms of the number of links, there are also a lot of links to infringing content from the structure of the site. Sites/applications that are clearly used to induce, or (b) sites/apps that contain more than half of the links to the infringing contents are considered to be subject to the regulation.
4.General bulletin boards, social networking services, blogs, etc. are not expected to be regulated, but if a bulletin board, social networking services, blogs, etc. only post links to infringing contents, they will be assessed as reachable sites and will be subject to regulation.
Unlike the regulation of downloading of infringing content, the regulation of reach sites and reach apps also applies to streaming infringing content that does not involve downloading. For example, the regulation also applies to sites or apps that aggregate links to streaming infringing content.
What kind of acts of providing links to infringing content is subject to the regulation?
Based on the fact that the provision of links on the Internet plays an extremely important role in the distribution of information, this reach site regulation is intended to regulate the act of providing links to infringing content on reach sites that are malicious and cause significant damage.
Therefore, it does not regulate the act of providing links to the infringing content on non-reach sites such as general SNS and blogs by chance. For example, if most of the posts on a social networking site are harmless and only one of them provides a link to the infringing content, the site is not considered to be a reach site and therefore, providing a link to the infringing content is not regulated.
In addition, even if it is a social networking service or a blog, if it only posts links to the infringing content, it will be evaluated as a reach site and the provision of links to it will be subject to regulation.
(*) Even if you provide links that are not subject to the reach site regulation, you may be separately evaluated as “aiding and abetting” the transmission of the infringing content.
(2) Illegal downloading of infringing content
Question 3: What changes have been made to the previously considered proposal? Is the content of legitimate information gathering and other activities on the Internet not atrophied?
1. Based on the concerns and opinions of the public, which were identified through public comments and other means, we have made various amendments to the design of the system as a result of discussions in a study group with a wide range of people concerned, including cartoonists.
Specifically, with regard to the illegal downloading of infringing content, the following amendments were made
(2) “Minor things” such as one to a few panels of a comic book
(3) Derivative works and parodies, and
(4) “When there are special circumstances that do not unreasonably prejudice the interests of the copyright holder” download
In addition, the Supplementary Provisions of the Act exempted the following from being illegalized
In addition, the supplementary provisions of the Act provide for enhancement of public awareness and education, measures to be taken by related businesses including the promotion of mark-granting to lawful sites, and consideration of criminal penalties, in order to respond to the concerns and anxiety of the public from an operational aspect as well.
As a result of these measures, the content of the law has achieved a good balance between “ensuring the effectiveness of anti-piracy measures” and “preventing the public from atrophying in the legitimate collection of information”.
Specifically, what do you mean by “minor infringements” and “cases where there are special circumstances in which the interests of the copyright holder are not unreasonably impaired”?
As for “insignificant”, typically, if the download volume is very small in terms of the total volume of the work, such as one to several panels of a comic book that consists of tens of pages, it is considered to be “insignificant”. On the other hand, downloading of half of an episode of a comic book, or a single download of an entire work, such as a painting or a photograph, would not be considered as “insignificant”.
Such treatment of “quantity” is just a typical example and will be ultimately judged by the court, taking into account individual circumstances such as the type and nature of the work and the position of the part of the work to be copied within the whole work.
As for “cases where there are special circumstances that are deemed not to unreasonably harm the interests of the author”, it was decided to establish the safety valve as a safety valve to flexibly judge exclusion of the author from the subject matter of illegalization in light of various factors, from the perspective of preventing the public from shrinking from legitimate information gathering, etc.
Whether or not to fall under this category will be determined on a case-by-case basis depending on two factors: (a) the degree of necessity of protection based on the type and economic value of the work, and (b) the manner of downloading, including the purpose and necessity of the download.
Downloading fraud manuals (copyrighted works) prepared by fraudulent groups that have been posted (illegally uploaded) on a complaint website by a victim’s aid organization for the purpose of protecting yourself or your family.
If a considerable part of the article (work) provided free of charge is reproduced (illegally uploaded) together with criticism on another researcher’s website, you must save it as a whole.
If you want to introduce a recommended event to a famous celebrity on a social networking site, you must save the posters (copyrighted material) posted on the site without permission (illegal upload).
It is considered to be the case that you are downloading such as
Is it illegal to download illegally uploaded material, even if I mistakenly believe that it has been uploaded legally?
There are a lot of contents on the Internet, and it is difficult to know whether they were uploaded legally or illegally.
Therefore, in order not to reduce the legitimate information gathering of the people, the amendment makes it illegal to download only when you know for sure that the content has been uploaded illegally, and it is illegal to download the content when (1) you are not sure whether the uploading is legal or illegal, or (2) you misunderstand that it is a legal citation, for example. If you are misled into believing that the upload was conducted legally, the downloading is not illegal.
In addition, publishers are making efforts to facilitate identification of legitimate sites by displaying the “ABJ mark” on the legitimate sites, and the Supplementary Provisions (Article 3) of this Law provides for further promotion of such efforts.
Q&A on the Illegal Downloading of Infringing Content (Basic Policy) (March 10, 2020, Copyright Division, Agency for Cultural Affairs)
(*)This Q&A summarizes the basic ideas of the Agency for Cultural Affairs at the time of the Cabinet’s approval of the “Draft Law for Partial Revision of the Copyright Act and the Law for Special Exceptions to the Registration of Program Works” in more detail, please refer to it as well. This Q&A will be added and updated based on the deliberations of the Diet.
Q6: What kind of acts will be allowed by the expansion of the scope of the provision on limitation of rights in relation to taking pictures?
In this revision, in response to the changes in social reality, such as the rapid spread of smartphones and tablets, and the development of video contribution and distribution platforms, we have decided to introduce a new system of video distribution systems.
In addition to expanding the scope of activities covered by the Act from “photographing”, “recording” and “videotaping” to all acts of reproduction and communication, the Act also includes the following
(2) It is not limited to the creation of a work, but also covers situations in which an act is not recognized as creative, and furthermore
(3) It was decided not to limit it to objects that are difficult to separate from the main subject.
2. These reviews have resulted in, for example
(1) Screen shots, live transmissions on the Internet, imitations, computerization of street scenes, and various other activities, and
(2) Photographs taken by a fixed camera and other scenes in which the act is not considered to be creative
(3) When a child is holding a stuffed animal, for example, and the child can be separated from the main subject
It is expected to facilitate the use of copyrighted works.
Q7: What concrete effects will result from the introduction of a system of countermeasures concerning the right to use a copyrighted work?
Under the pre-revision Copyright Act, in the event of a copyright transfer, the user (the licensee) in a license agreement (license agreement) of a work may not challenge the right to use the licensed (licensed) work against third parties such as the copyright holder’s assignee, etc., and may not continue to use the work. In order to solve this situation, it was not possible for the licensee to transfer the copyright to the user (licensee).
From the viewpoint of solving such a situation and promoting stable utilization of intellectual property as an intellectual property country, the amendment allows users (licensees) to challenge against third parties, such as copyright assignees, without having to register their usage rights.
This means that even if the copyright is transferred or the copyright holder goes bankrupt, the user (the licensee) can continue to use the copyright within the scope of the usage methods and terms and conditions originally authorized, and will no longer be subject to injunctions or demands for additional payments, and can conduct business with peace of mind. We believe that this will contribute to the development of an environment in which it is possible to do so.
Q8: What specific measures will be taken to strengthen the protection of access control?
In recent years, the method of providing contents has shifted from package sales to Internet distribution, and as a result, license authentication technology using serial codes and the like (the so-called activation method) has become widely used as a protection technology to prevent unauthorized use, while license authentication technology has become more and more popular. Illegal use of software by evasion is widespread.
Based on this situation, the amendment of this time, as well as the amendment of the Unfair Competition Prevention Law in 2018, has the following effects
The definition of “technical means of restricting use” (so-called access control) and “technical means of protection” (so-called copy control) protected by the Copyright Act are also subject to the definition of “technical means of restricting use” (so-called access control) and “technical means of protection” (so-called copy control), in order to clarify that, like license authentication technologies, those for which signals to prevent unauthorized use are transmitted and recorded separately (afterwards) from the contents are also subject to the provisions of the Copyright Act.
The new law will make it possible to ask for civil and criminal liability for the unauthorized provision of serial codes that bypass the above functions, as they are considered to be infringing acts.
This will deter unauthorized use of contents that circumvent the license authentication technology and contribute to the proper protection of copyrights and other intellectual property rights, mainly in the software and game industries.