WIPO/CNRISEL/97/3
ORIGINAL: English
DATE: September 29,1997
w
e
MINISTRY OF CULTUREAND SPORTS
REPUBLIC OF KOREA
WORLD INTELLECTUAL
PROPERTY ORGANIZATION
WIPO NATIONAL SEMINAR ON DIGITAL TECHNOLOGY
AND THE NEW WIPO TREATIES
organized by
the World Intellectual Property Organization (WI PO)
in cooperation with
the Ministry of Culture and Sports.
Government of the Republic of Korea
Seoul, October 27 and 28, 1997
THE RIGHT OF REPRODUCTION AND
THE RIGHT OF COMMUNICATION TO THE PUBLIC
Paper prepared by Kaoru Okamoto,
Director,
International Copyright Office,
Agencyfor Cultural Affairs,
Japanese Government
n:\orgadgc\shared\rocsem\document\sel3. doc
WIPO/CNRJSELl97/3
page 2
The present paper was prepared for the presentation by the author on "Topic 2: The
Right of Reproduction and the Right of Communication to the Public" at the WIPO National
Seminar on Digital Technology and the New WIPO Treaties to be held in Seoul on
October 27-28,1997.
The substantial contents of this paper are included in Annex I-III. The author of the
present paper drafted Annex I for the Copyright Council, and prepared Annex II and Annex III
for the WIPO National Seminar in Seoul.
Annex I, which is usual called "White Paper I," is a report of the Copyright Council
(an advisory committee for the Agency for Cultural Affairs). Based on the "Green Paper" in
1995 and the following domestic and international discussions (especially the two New WIPO
Treaties), a series of White Papers are expected to be issued by the Copyright Council, and
Annex I was the first one of such White Papers. The Copyright Law of Japan was amended in
June 1997, based on this report.
Annex II describes the major part of the above-mentioned amendment of the Japanese
Copyright Law, which was to establish the new right of "making available (transmittable)" for
authors, performers and phonogram producers (the right of "communication (transmission) to
the public" had already been granted to authors since 1986).
Annex III shows another important point in the amendment, which is relevant to both
the right of communication and the right of reproduction. This amendment is considerably
significant to the use of computer programs through LANs (Local Area Networks).
[Annexes follow]
WIPO/CNR/SELl97/3
ANNEX I
<
Wh i t ePa per
I
»
The First Legislation-oriented Report
based on the Green Paper (Feb. 1995)
by
The Multimedia Subcommittee
of
The Copyright Council
of
The Agency for Cultural Affairs. The Government of Japan
February 24. 1997
1 Background
The Multimedia Subcommittee. which was established in 1992. developed its
discussions on the issues which had stemmed from the development of
digitization and network. and published its First Report in November 1993.
focusing on the issue of "right clearance systems". The Subcommittee
continued its discussions on the issue of "rights" themselves by
establishing a Working Group in it. which published the so-called
"Japanese Green Paper" in February 1995.
This "Green Paper" was not to indicate definitive decisions on future
legislations but to list relevant issues to be discussed. to exemplify
possible legislations and policy options and to sum UP the discussions in
the Working Group on such issues and options. The "Green Paper" was sent
to some 300 relevant bodies for comments. and 74 of them submitted
written comments. which were reported to the Multimedia Subcommittee
in August 1995.
The Multimedia Subcommittee was supposed to continue the discussions to
identify the issues for which it should go forward to propose amendments
of the Copyright Law. However. since the schedule for the new treaties
of WIPO was suddenly accelarated. it decided to suspend the deliberation
in order to see the results of the coming Diplomatic Conference for these
new treaties.
As the Basic Proposals for the new treaties were opened in September 1996.
which indicated the direction of new international norms to some extent.
the Multimedia Subcommittee reopened its discussions in October 1996.
WIPOICNRl97/3
Annex I, page 2
focus lng on urgent issues. The new treaties of WIPO, namely the
Copyright Treaty and the WIPO Performances and Phonograms Treaty,
adopted at the Diplomatic Conference in December 1996, and
Subcommittee further continued its deliberation, taking into account
provisions of tbese new Treatie~
WIPO
were
the
the
The following is tbe report (White Paper 1) of such discussions at the
Multimedia Subcommittee. however. the deliberation after October 1996 was
only on urgent issues. Therefore, the Multimedia Subcommittee will develop
its discussions on other issues which were listed in the "Green Paper" and
will continue to publish White Papers continually on those issues for
which the discussions have matured for legislative actions.
2
Issues for Igcdjate
(I)
New Rights of Performers and Phonogram Producers
for Interactive Transmission
ACtiODS
The Copyright Law of Japan does not grant performers or phonogram
producers any right of "interactive transmission" through such networks as
the Internet except for the case of interactive transmission of "live"
performances. This was pointed out in the Green Paper as an issue to be
discussed, and it exemplified some possible legislative options such as
new exclusive rights. new remuneration rights, new rights only for
"digital" interactive transmission, etc.
The WIPO Performances and Phonograms Treaty, which was adopted in December
1996, took an approach to this issue by not granting performers or
phonogram producers any right of the act of interactive transmission
itself but by granting them new exclusive rights of "making available to
the public by wire or wireless means", which correspond to the stage
before actual interactive transmissions. This seems to have been done in
order to avoid the coexistence of exclusive rights of authors and
neighboring rights owners at the stage of transmission, while to ensure
the interests of performers and phonogram producers at the preceding stage
of "making available".
As is indicated in the Green Paper, music delivery services using
interactive transmission systems have been developing rapidly. and
therefore, the Copyright Law should be amended to establish such new
rights of performers and phonogram producers, based on the international
direction which is shown in the new WIPO treat~
(2) Inclusion of "Making Available" in the Concept of "Transmission"
of Works of Authorship
The right of interactive transmission of authors was clearlY stipulated in
the Japanese Copyright Law in 1986 for the first time in the world, and
still now it is only in the United Kingdom and Japan that this right is
WIPO/CNRJ97/3
Annex I, page 3
explicitly provided for in the Copyright Law, coping with the use of works
by interactive transmission through such networks as the Internet. As such
a form of exploitation of works was prevailing, the necessity to establish
a new international norm. which would be similar to those in the United
Kingdom and Japan, started to be claimed, and the WIPO Copyright Treaty,
which was adopted in December 1996, provided for a new right of authors of
"communication to the public" to cope with the development of interactive
transmission.
However, the Japanese Copyright Law grants authors an exclusive right of
interactive transmission. targeting only the act of transmission itself,
while the WIPO Copyright Treaty covers a wider range of acts. namely both
the act of interactive transmission (communication to the public) and the
act of "making available" before the transmission, by including the latter
concept into the former.
The act of "making available" is so far usually done together with the act
of reproduction in a server, and therefore, the right of reproduction may
be appl ied in a number of such cases. IIowever, for such a case as a lawful
copy is connected to the Internet without authorization (with no act of
reproduction) and no one has ever accessed it, it will be better for the
Copyright Law to cover the act of "making available" because, in the above
case there is no infringement of the existing right of interactive
transmission and, therefore, the right owner cannot claim the compensation
(although he can demand cessation).
Therefore, the Copyright Law should be amended to include the concept of
"making available" to that of "transmission" based on the WIPO Copyright
Treaty.
(3) Expansion of the Coverage of the Right of "Wire Transmission" to
the Transmission of Computer Programs within the "Same Premises"
The concept of "wire transmission" in the Copyright Law, which covers also
wire interactive transmission. does not include the act of transmission by
wi re wi thin" the same premises", and therefore, the right of authors does
not apply to such transmission to the public carried out in one premise
possessed by one natural or legal perso~ This has been pointed out as a
serious problem as so-called LANs (Local Area Networks) develop and
prevail especially in terms of the use of computer programs. The Green
Paper also exemplified a policy option to "include transmission to the
public by wire in the same premises into the concept of 'wire transmission'
in the Copyright Law".
The exploitation of works within the same premises, making use of wire
broadcasting (wire diffusion) and wire interactive transmissions such as
those done through LANs is now on the way of rapid exPansion and
dlverslt icat iou Therefore, if transmission to the public by wire in the
same premises is to be included in the concept of "wire transmission" in
terms of all types of works, it will be necessary to carefully continue
WIPO/CNRl97/3
Annex I, page 4
the discussions. paying due attention to on-going changes in the status
quo of means of usage, including necessary new limitations on the right.
On the other hand. as to such a form of utilization of computer programs,
the exploitation through LANs enables all connected computers to use one
original copy of program, causing serious problems to copyright owners.
Therefore, the Copyright Law should be amended so that transmission to the
public by wire in the same premises be included in the concept of "wire
transmission" and be covered by copyright. for the time being, only in the
case of computer programs.
(4) Clarification of the concepts of Wireless Broadcasting and Wireless
Interactive Transmission
According to Article 2 (definitions) of the Copyright Law, the concept of
"wire transmission" covers both "wire broadcasting (wire diffusion)" and
"wire interactive transmission". On the other hand, as to wireless
transmission, the Copyright Law uses only the term "broadcasting" also
for "wireless interactive transmission".
This difference of terminology was caused. because in 1986, in which the
author's right of wire/wireless interactive transmission was established
by introducing the new concept of "wire transmission" in addition to "wire
broadcasting (wire diffusion)", there was no practice of wireless
interactive transmission. and therefore, it was considered unnecessary to
distinguish wireless broadcasting from wireless interactive transmission
(botb of which are covered by the concept of "broadcasting") in the
terminology of the Copyright Law. However, interactive transmission by
wireless means, at least partly. is already done and expanding, and
therefore. it is now necessary to clarify relevant cencepts in the
Copyright Law by renaming thea
In renaming the relevant concepts, it also seems appropriate to abolish
the distinction between wire transmission and wireless transmission in
terms of interactive transmission. partly because the WIPO Copyright
Treaty does not make any distinction between the two and partly because
interactive transmission with the mixture of wire and wireless means is
expandin~
(5) Urgent Necessity to Develop Discussions on Circumvention Devices
against Copy Guard Systems
A number of programs/data of computer games are now equipped with certain
technological measures against unauthorized reproduction and/or use of
unauthorized copies. Also, digital audio recording equipments usually have
the systems which limit the scope of reproduction. and similar systems are
expected in the near future in the field of digital audiovisual recordi~
On the other hand, various devices for circumvention of such systems are
sold in the market, and such devices are causing serious economic damages
WIPO/CNR/97/3
Annex I, page 5
to right owners because they enable reproduction of works by deactivating
the relevant measures or systems.
lloscver. the Copyright Law has no provision against such devices for the
circumvention. and a lot of comments which said that there should be
certain legal systems against such acts were submitted. responding to the
Green Paper. The members of the Mul timed ia Subcommi t tee unanimous Iy agreed
with the perception that there were at least some intolerable acts, just
.1 ike the case of computer games. in which users of such devices were
induced to carry out such acts as reproduction, which were causing serious
damages to tbe interests of rigbt owners.
COpy guard systems are expected to be used more widely in the future.
including those for the cases of interactive transmissions through such
networks as the Internet, for the protection and management of rights. and
therefore, it is crucial to discuss possible legislative actions for copy
guard systems. The WIPO Copyrigbt Treaty and the WlPO Performances and
Pbonograms Treaty also provided for adequate legal protection and
effective legal remedies to be introduced by contracting parties.
On the other hand, it is also necessary to continue careful discussions on
the scope of copy guard systems and circumvention devices to be covered by
possible new legislations, because copy guard systems are and will be made
with a wide range of measures and methods and circumvention devices may
also be made with a variety of forms. It is also needed to further develop
the discussions, taking into account the current status of the supply and
use of relevant devices, on whether or not the act of reproduction with
such circumvention devices should he excluded from the reproduction under
such provisions of limitation on rights as Article 30 and on whether or
not the people and companies engaged in the production and sale of such
devices should be responsihle.
Therefore, as to the legal actions against the devices for the
circumvention of copy guard systems, it is necessary to further continue
the discussions with a wider perspective to reach a conclusion at the
earliest stage, paying due attention to the fact that the importance of
the use of technological measures for the protection and management of
copyright and neighboring rights is growing in line with the development
of digital technologies, and considering the development of relevant
technologies as well as the relevant legislations in other countries.
[Annex II follows]
WIPO/CNRlSELl97/3
ANNEX II
Amendment of the Japanese Copyright Law to introduce new rights of "making
available" based on the new WIPO Treaties
The Parliament of Japan approved an amendment of the Copyright Law on June 10,
1997, the major purpose of which was to establish new rights of "making available" for
authors, performers and phonogram producers based on the WIPO Copyright Treaty and
the WIPO Performances and Phonograms Treaty. This amendment will enter into force on
January
L 1998, and the following is the description of the major points of amendments:
I. Major Points of the Amendment
(l)new rights of "making availableCtransmittable)" of performers and phonogram
producers
This amendment is to comply with Articles 1
°
and 14 of the WIPO Performances
and Phonograms Treaty. In addition to the obligation under this Treaty, performers
are granted the above right for their "live performances", which applies to such a
prevailing case as "Internet broadcasting" of "live performances".
(2)expansion of the right of "transmission to the public"of authors to the preceding stage
of "making availableCtransmittable)"
Authors are already granted the right of wire/wireless transmission to the public
including "interactive transmission". This amendment is to comply with Article
8 of
the WIPO Copyright Treaty by expanding the coverage of this right to the stage of
"making available", which precedes the stage of "transmission(communication)".
(3)redefinition of the acts related to wire/wireless transmission to the public
This amendment is to clarify various existing concepts/terms in the Copyright Law.
WIPO/CNRl97/3
Annex II, page 2
n
Charts to Sho! the Con ten ts of the AFDdlfDt
<t:AmendJlen t of above
(3)~
(terminology before the amendment)
transmission to the public
wire transmission
wireless transmission
r---i wi re transnission
broadcasting
I--
wire interactive
t ransniss ion. etc.
r-
wireless interactive
transmission, etc.
wire diffusion
.--
I--
CATV, etc.
broadcasting
-
TV, radio, etc.
~
(terminology after the amendment)
public transmission
interactive transmission
home pages. Video-on-Demand,
Internet broadcasting, etc.
,...
wire diffusion
CATV, etc.
t-
r-
broadcas t inz
r--
TV, radio, etc.
other transmissions to the public
* "Other
transmissions to the public' include e.s "telefax service
systems" for the public, in which members of the public can
request a "telefax center" by telephone to transmit something
by telefax manually.
WIPO/CNRJ97/3
Annex II, page 3
~Amend.llen t 0 f
above
(I)
and (2»
Rjghts Qf -Interactjye TranS1jssjQn-
T
"making available"
-+
I
(before -the aaendnent)
authors
performers and
phonogram producers
(new WTPO Treat ies)
authors
performers and
phonogram producers
(after the aaendnent)
authors
--
: ---(no righ;;---:
I
I
transmission
I
(no right)
-----------
=----------~
T
'communication to the public
making available
I
publ ic transmission
making
I
I [__(n~ right_)_
i
pertorners and
phonograJl producers
I
r--~--~~o r i~b ;;----)
~-
transllission
(connunicat ion)
I
I
,----------------,
,
(no right)
t ransai t tahle
'-------
:
WIPO/CNR/97/3
Annex IT, page 4
ill·
Releyant Articles after the A'endllf'nt (tentatively translated)
Article 2 <Definitions)
(I) 7-2 -publjc traas'issjon- means the transmission of wired or wireless
telecommunication intended for direct reception by the public
(excluding the transmission of wired telecommunication within
the sane premises other than the case of the transmission of
computer programs);
8
-broadcasting- means the -public transmission" of wireless
telecommunication intended for simultaneous reception by the
public of the transmission having the same contents;
9
-'ire diffusion- means the "publ ic transmission" of wired
telecommunication intended for simultaneous reception by the
public of the transmission having the same contents;
9-4 -interactive trans.ission- means the -public transmissionautomatically done upon request by members of the public
(excluding those included in broadcasting or wire diffusion);
9-5 -interactive trans.ission server- means the device which. by
connecting to a telecommunication network for the use of the
pUblic. carries out -interactive transmission- of the information
which is either stored in its public transmission memory or
inputted to it continuously without storage;
pa,'
9-5 -'aking trans.ittable- means putting in such a state.. by ei ther
pa" of the following acts. that - interact ive transmission- can be
done:
a) for an "interactive transmission server" already connected to
a telecommunication network for the use of the public:
- to store information in its public transmission memory; to
add new memory with information to it; to convert its nonpublic transmission memory with information into public
transmission memory; or to input information to it
continuously without storage;
b) for an -interactive transmission server" already with
information stored in its public transmission memory or
inputted to it continuously without storage:
- to connect it to a telecommunication network for the use of
the public.
WIPO/CNR/97/3
Annex II, page 5
Article 23 (Right of Public Translission)
(I) The author shall have the exclusive right of authorizing public
transmission (including the making transmittable in the case of
interactive transmission) of his work
Article 92-2 (Right of Making Translittable of UnfixedlFixed Perforaances)
(I) Performers shall have the exclusive right of authorizing the making
transmittable of their performances.
(2) The provision of the preceding paragraph shall not apply in the
following cases:
a) performances incorporated in visual recordings with the
authorization of the owner of the right mentioned in paragraph (I)
of Article 91;
b) performances mentioned in paragraph (2) of Article 91 which are
incorporated in fixations other than recordings mentioned in that
paragrapa
Article 96-2 (Right of Making Translittable of Phonograls)
Producers of phonograns shall have the exclusive right of aurhotizing
the making transmittable of their phonograms.
note: There will DQ1 be any new limitation provision to the right of
"making transmittable" of authors, performers and phonogram
producers.
[Annex III follows]
WIPO/CNRlSELl97/3
•
Annex III
AJendient of the Japanese Copyright Law to exclude cOlPuter nrogra-s
fro. the "one pre.ise exception"
The Parliament of Japan approved an amendment of the Copyright Law on
June 10, 1997. Apart from its aaior purpose to establ isb new r ights of
"making available" of authors, performers and phonogram producers, it had
another extremely important point of amendment which was relevant to both
the development of LANs (Local Area Networks) and the issue of "temporary
storage". The following is the description of this point of the amendment
and its background.
T. Problem of "Temporary Storage"
So-called "temporary storage", e.~ storage of works in a RAM (Random
Access Memory) of a computer, which is to disappear when the computer is
turned off, is not considered as an act of "reproduction" in terms of the
Copyright Law in Japan although there has not been any clear-cut
definition of "temporary storage",
The origin of tbis interpretation is unclear, however, one can find
some records of discussions in governmental advisory committees in 1980s,
that temporary storage of computer programs in RAMs of a computers should
not be considered as reproduction in terms of the CopYright Law. Such
discussions were done within the framework of the crucial debate on
whether or not computer programs should be protected by copyright.
At that time, vi z. in 1970s and earIy 1980s, bui It-in memori es of
so-called office computers were extremely small, compared to the present.
Therefore, all office computer users used to install an application program
from a large floppY,disk to the ~Ms of their computers every mornin~
In the evening, when the computer was turned off, the program was
automatically gone, and the user used to do the same thing in the next
mornin~ The above-mentioned discussions and interpretation reflect such
a situation of 20 years ago, and they meant that such everyday temporary
installment should not be under the control of the author. This act of
temporary installment is an equivalent of today's act of transferring
(setting up) a program froID a hard disk to a RAM within one computer.
The reason why this interpretation was exPanded froID computer program
to all works is not clear, however, it is now a prevailing interpretation
of the Copyright Law that temporary storage in RAM is not "reproduction".
WIPO/CNR/SELl97/3
Annex III, page 2
•
II. PrQPQsal by the "Green Paper"
The abQve interpretatiQn started tQ cause seriQus prQblems especially
to authors of conputer prograns. FQr other catesories of works, tenporarv
stQrage dQes nQt always cause serious eCQnQmic prQblems tQ the authQrs,
hQwever, in the case Qf cQmputer prQgrams, which can functiQn and bring
about large econouic benefi ts even by t euporarv storage, it does,
The Japanese Green Paper in 1995, which was prepared by the CQpyright
Counc i l of the Agency Ior CuI tural Affairs of the Government, therefore
suggested that the CQpyright Law be amended so that sQ-called temPQrary
storage may be included in the concept of reproduct ion, However, this
prQPQsal suffered frQm extremely strQng QPPQsitiQn frQm the industrial
sector (users' side) of Japan, and it has not yet been realized as an
amendment Qf the CQpyright Law.
This issue has alsQ caused seriQus debates in internatiQnal
discussions including those for the establishment Qf WIPO Copyright Treaty
and WIPO PerfQrmances and Phonograms Treaty, and therefore, the present
paper does not intend to make any effort tQ analyze the prQS and CQns Qf
this issue.
III. Urgent Issue of RAMlLAN Use of CQmputer PrQgrams
As has been mentiQned in the preceding section, the attempt to CQver
temPQrary storage by reprQductiQn right was stuck in a sense. However, the
develQpment Qf transmissiQn netwQrks started tQ cause an extremely seriQus
prQblem tQ computer programs by the prevailing use Qf them thrQugh LANs
and RAMs.
The Japanese CQpyright Law was amended in 1986 tQ CQver all types Qf
wire/wireless and digital/analQgue transmissiQns tQ the public (including
interactive transmissiQns such as those dQne thrQugh the Internet). HQwever,
at this amendment an impQrtant limitatiQn was alsQ intrQduced tQ this
general transmissiQn right, which was the exclusiQn Qf all wire
transmissiQns carried Qut within "one premise" (e.g. Qne building
possessed by a natual/legal persQn).
This exception was intrQduced so that such a case as "nQn-prQfit-making
wire brQadcasting of musics within a schQQl" may nQt be cQvered by the
right of transmission tQ the public. HQwever, as LANs develQped rapidly in
a number of profi t-naking enti ties, this exceot ion started to be used tor
totally different purposes, viz. copvrisnt-free t ransaissions or works
,
WIPO/CNRlSELl97/3
Annex III, page 3
•
from the host computer of a company to the RAMs of personal computers of
the employees through the LAN of the building of the company.
Although not many authors' organizations have noticed the seriousness
of todav' s si tuation (e. g. Surpr isinslv, no newspaper company has ever
raised this probl en ). ACCS (Association of Copyright for Computer
Software) of Japan, which is a Japanese organization similar to the BSA,
continuously claimed the danger of the above exceptio~ Just like the case
of temporary storage in seneral, such RAM/LAN uses of works do not always
cause serious problems to other categories of works, however, in the case
of computer programs, one software can be freely used by a number of people
at a number of PCs and work stations just by storing it in the RAM after
the transmission through the LAN within one building. According to the
estimation by ACCS, more than I million softwares were used by such a
legal way.
eadouarters
Buildin~
(one Dremise
Host Computer
I
.
.-
L
A
.
PC
I RAM I
A....
PC
I RAM I
PC I RAM I
-----1
Branch
I
.
.
.
PC
I RAM
--_ ... _---------------
Branch
I
,
...
.. _--------------------
PC I RAM I
,
N
,-
-
B....
,
I
PC
I RAM I
-
~
PC I RAM I
I
~
Branch
PC I RAM I
'--j
Branch
!--
A: Covered by the right of "publ ic transmission" after the amendment
B: Already covered by the right of "public transmission" even
before the amendment
WIPO/CNRlSELl97/3
Annex III, page 4
,
~
The above-mentioned way of use of computer programs is, in a sense,
similar to the case of everyday installment from a floppy disk to RAM of
20 years ago. The everyday installment from one floppy to one computer ~M
may have been OK, bowever, everyday installment from one host computer
memory to a number of RAMs through LAN could never be overlooked.
The above two cases are similar to each other also in a sense that
both of them theoreticallY should be covered by the right of reproductio~
However, as the issue of "temporary storage" had been stuck since 1995,
the copyright authorities of Japan (the Agency for Cultural Affairs)
decided to cover such an act by the right of "public transmission". This
means that computer programs should be excluded from the above-mentioned
"one premise exception" (therefore covered by the right of public
transmission) by an amendment of the Copyright Law.
This amendment was carried out on June 10, 1997 and wi II enter into
force in January 1, 1998. However, there still are two major issues:
a) appropriateness to continue the "one premise exception" for other types
of works; and b) appropriateness to continue the exclusion of "temporary
storage" from reproduction.
[End of Annex III and of document]