Use of copyrighted works

first

The world is full of many copyrighted works. For example, it would be best to consider that most articles posted on personal blogs, Facebook, 2channel, etc. fall under the copyrighted works of the article creators.

As stated in "For first-time users," the copyright law aims to harmonize the rights of creators (authors) to their works, the distribution of useful information to society, and the development of culture. The so-called restrictive provisions stipulated in the Copyright Act, which will be explained here, limit the rights of copyright holders (make them unable to exercise their rights) in order to distribute useful information to society and further develop culture. ) can be said to be a regulation that works as a thing.

Easy use of copyrighted works carries the risk of violating copyrights and moral rights of authors. Here, we will explain what kind of use is considered legal under copyright law.

Use by legal citation

Article 32, Paragraph 1 of the Copyright Act stipulates that ``published works may be quoted and used.'' This means that even if the act of using a copyrighted work, such as copying it, is done without the permission of the copyright holder, if it falls under the category of quoting, it does not constitute copyright infringement and is an exercise of the rights of the copyright holder. (Injunction requests, etc.) are restricted.

Furthermore, Paragraph 1 of the same article continues: ``In this case, the citation must be consistent with fair practice and within the scope of legitimate citation for reporting, criticism, research, and other citation purposes.'' We have established a requirement that "it must be a

Below, we will explain in detail when citations are considered legal.

*Note: Distinction between usage and use

Under copyright law, there is a distinction between the terms "utilization" and "use." "Use" is defined by the Copyright Act as an act that can be carried out exclusively by the copyright holder, and refers to the reproduction, transfer, etc. of a copyrighted work. On the other hand, "use" refers to other acts of using, such as listening to music or reading novels.

Please note that the issue in this section is not the use, but the context of use.

2. About requirements

four requirements

From the wording of Article 32, Paragraph 1, we can see four requirements to avoid copyright infringement.

Let's look at them in order below.

(1) The copyrighted work in question must have been published.

Publication is stipulated in Article 4 of the Copyright Act, and will be determined based on whether it falls under Article XNUMX of the Copyright Act.

For example, Article 4, Paragraph 1 provides that if a copyright holder presents a work to the public by performance, performance, screening, public transmission, oral presentation, or exhibition, the work is deemed to have been made public. It is stipulated that

(2) The problematic use constitutes a quotation.

There is no explicit provision in the Copyright Act regarding what kind of act is quoting.

In court cases, the form of use of another person's copyrighted work is generally analyzed and determined from two points: ``distinctness'' and ``superior-servant relationship.''

A Clear distinction
It is necessary to be able to clearly distinguish between parts that you have created yourself and parts that have been borrowed from someone else's work.

B. Master-slave relationship
Comparing the parts created by oneself with the parts borrowed from the works of others, the parts created by oneself are quantitatively and qualitatively the main part of the entire creative work. is required.

Generally, when both A and I above are met, it is considered a citation.

In addition, the fair practice requirements and legitimate scope requirements explained below play a role in selecting legal ones from among the citations determined in this way.

(3) The quotation is consistent with fair practice.

Quotations that do not comply with fair practices are not legal. Even if there are traditional practices, not all of them can be used as criteria for judgment, and only those practices that are recognized as fair from a legal perspective. In addition, for industries where no customs have been established, judgments will be made based on assumptions about fair practices that should exist in the future.

*About specifying the source

Under the Copyright Act, Article 48, Paragraph 1, Item 1 of the Copyright Act stipulates how to indicate the source of quotations. According to court precedents, this is a provision related to the determination of whether a quotation is ``consistent with fair customs'' under Article 32 of the Copyright Act, and in the process of distinguishing legal quotations from quotations, the clearly stated content of the source is checked. There are some who believe that.

In addition, what kind of customs have been established in each specific case regarding how much detailed information needs to be included and in what manner the source should be indicated? Each case is different, so it is important to consider each situation individually before making a decision.

(4) The quotation is made within a legitimate scope for the purpose of quotation.

This stipulates that only the legitimate scope of the cited works of others should be used.

Whether or not it is a legitimate scope is judged from the aspects of quantity and quality, and it is important not to borrow too much from the work being cited, and even if the amount is small, it is important not to borrow too much from the work being cited. If you quote high-quality parts of your work, you will be subject to strict judgment as to whether or not the range is legitimate.

This section and the aforementioned "(3) B. Master-servant relationship" are both requirements that focus on the relationship between the user's copyrighted work and the user's copyrighted work. However, there is a difference in that the determination of the legal scope compares B and C in the diagram below, while the determination of the master-slave relationship compares A and C.

Regarding legal usage and dangerous usage

About private use purpose

Although the right to reproduce (Article 21 of the Copyright Act (hereinafter abbreviated)) is recognized by Japanese law as the exclusive and exclusive right of the author or copyright holder, we do not In our social lives, we frequently reproduce copyrighted works. In view of the exclusive rights granted by copyright law, such acts are understood to be illegal.

However, under Japan's copyright law, copying for personal use is defined as one of the acts that restrict copyright. The wording of Article 30, which stipulates private use, is as follows:

About requirements

So, what requirements must be met for an act to fall under Article 30? The requirements in paragraph 1 are interpreted as follows:

Here, we would like to consider the requirements and their scope of application using the following example as an example.

① Use personally or within a similar limited scope (private use)

The specific scope of the abstract expression ``other limited scope similar to this'' is an issue, but generally speaking, ``limited scope similar to this'' refers to strong personal relations between members, similar to a family. It is understood that there is a bonding relationship, that is, it is a small and ``specific'' group on the same level as a family. Based on this standard, the act of copying materials within a company for internal use does not fall under the category of private copying (Tokyo District Court, July 52, 7, Stage Set Design Case).

Let us now consider A's actions in case (1). A has published a copy of α on his personal homepage that is accessible to an unspecified number of people, so it cannot be said that it is within the scope of "specific". Therefore, it does not fall under "other similar limited use" and does not fall under private use.

② Having the purpose of private use

Although the purpose is a subjective requirement, it is judged objectively in relation to external actions.

Even if the act of A in Example (1) met the requirements for legal private copying before it was published on the Internet, by uploading it to the Internet, an unspecified number of people could view it. At this point, it is determined that the copy was made for purposes other than personal use.

③ Copying by the user

The person using the work for personal use must make the copy himself, and this also applies if the person using the work for personal use makes the copy.

In case (26), A hires a vendor to make copies. The external vendor is a contract entity on an equal basis with the user, and performs the copying act requested by the user as an independent business for the purpose of profit. This will not be A, who is a private company, but an external vendor (Intellectual Property High Court judgment of October 10, 22, self-catering agency case). Therefore, the said requirement is not met, and the act of A in Example (XNUMX) does not fall under private use.

When the application is excluded

(1) Automatic reproduction equipment installed for the purpose of public use (referring to equipment that has a reproduction function and in which all or a major part of the equipment is automated) (Clause 1, Item XNUMX)

Copy machines installed in convenience stores, etc. do not fall under the category of automatic duplicating equipment, but according to Article 5-XNUMX of the Supplementary Provisions of the Copyright Act, copy machines installed in convenience stores, etc. are excluded from automatic duplicating machines. This is because there is a high need for copy machines for documents and drawings in people's daily lives, and in view of the fact that such copy machines are not widely used in households, it is not appropriate to use such copy machines for the convenience of the people. Permitted for personal use.

(1) By circumventing technical protection measures (removal or modification of signals used in technical protection measures (excluding removal or modification due to technical constraints associated with conversion of recording or transmission methods) (the same applies in Article 1-2, item XNUMX and item XNUMX), or the result thereof. Reproduction that has no longer caused any damage to the product, and it is not appropriate to do so with knowledge of the fact (paragraph XNUMX, item XNUMX)

●Copy guard, copy protection

Technical protection measures in this provision have conventionally referred to so-called "copy guard" and "copy protection," and the act of removing such copy protection has been expressed in the phrase "circumvention of technical protection measures." I did. Although copyright holders provide copyrighted works on the market with the premise that copy protection is in place, removing such protection overturns that premise and allows unintended copying to take place. This makes it possible for things to be done. This was excluded from the scope of private use because it could seriously harm the economic interests of the copyright holder. Furthermore, criminal penalties will be imposed on those who transfer to the public devices or programs that have the sole purpose of removing copy protection, as a form of conduct that seriously harms profits (Article 120). Article 2).

In case (3), although it can be said that A only saves the copy α on his own mobile device and enjoys it for personal use, the manner of copying was dependent on α's original DVD. It was to remove the copy guard. As mentioned above, copy protection falls under the category of "technical protection measures" under this provision, so copying copyrighted works that circumvents this does not fall under private use.

●Ripping

With the revision of the Copyright Act in October 2012, "ripping" of DVDs and Blu-ray discs is now included in this provision of "circumvention of technical protection measures." Ripping refers to the act of importing data recorded on a disc into a computer as a file, and this regulation applies to acts that circumvent the access control technology called CSS used on discs through ripping.

CSS (Content Scramble System) is a technology that encrypts and records video so that it can only be played back on specific devices. Simply performing ripping to extract data from a disk with CSS applied will not be able to decrypt it and will not allow playback. Ripping, which removes this encryption and saves the file in a playable state, falls within the scope of this provision as a way to circumvent CSS technology.

Regarding music CDs, it is generally said that ripping music CDs is not a problem. In recent years, video discs such as DVDs usually use CSS technology, but music CDs generally do not have this CSS or other protection technology. The scope of this provision is strictly to circumvent CSS technology, so simply ripping a music CD that does not use CSS technology does not fall under the category of "circumvention of technological protection measures." Therefore, even if you save music CD data as MP3 on your computer or on a portable music player, it will not fall under the applicable exemption provisions and can be enjoyed for personal use as before.

(1) Digital method for receiving automatic public transmissions that infringe on copyright (including automatic public transmissions made overseas that would constitute copyright infringement if done in Japan) It is not the right time to make audio or video recordings while knowing the fact (paragraph 3, item XNUMX).

This regulation was newly established in 2009 due to the revision of the Copyright Act, and is a regulation regarding so-called "illegal downloading."

Illegal downloading is defined by the wording stipulated in Paragraph 1, Item 3, but to put it more simply and generally, it is ``illegal downloading of copyrighted video or music that has been illegally uploaded onto the Internet.'' This refers to the act of downloading something while knowing that it has already been uploaded.

In 2012, the Copyright Act was revised to provide penalties for illegally downloading paid works. The criminal provisions added by the amendment (Article 119, Paragraph 3) are as follows.

In addition, Article 123, Paragraph 1 stipulates that it is a crime of private notice.

Now, I will explain the specific points to keep in mind regarding this act and this penalty.

① The subject of reproduction is limited to paid works, etc.

Illegal downloading that is subject to criminal penalties is limited to downloading paid works. As specific examples of paid works, in the Q&A on the criminalization of illegal downloads published by the Agency for Cultural Affairs, there are examples of music works sold as CDs, music works distributed over the Internet for a fee, and music works sold as DVDs. Movies that are distributed online for a fee are listed.

It is worth noting here that the scope of this act is limited to audio and video recordings of music and video. This provision was established in consideration of the impact on the download business market, so downloading image files and copying and pasting text do not fall under the category of illegal downloading. Furthermore, the mere act of viewing illegally uploaded music or video without recording or recording is not subject to this act.

② It is limited to cases where the content is knowingly uploaded illegally.

This is only possible if you know the fact that it has been uploaded illegally and you dare to download it.

In case (4), C downloads α knowing that α was uploaded legally. In such cases, C's actions will not be subject to criminal punishment.

In order to prevent Internet usage from being unduly restricted in response to the establishment of such penalties for Internet usage, the government has established the following supplementary provisions. This requires the police to take precautions to avoid arbitrary abuse of their investigative powers, and also stipulates that concerned rights holder organizations be given advance warnings before making a complaint.

Regarding "cache", which temporarily saves site information in the browser for viewing, Article 47-8 (Reproduction associated with use of copyrighted works on computers) states that "cache" is used to ensure that information processing is carried out smoothly and efficiently. It is considered legal as long as it is within the limits deemed necessary for the purpose of doing so. However, if temporarily saved data is saved from the cash holder inside or outside the computer, Article 49-1 does not apply as it is considered to be used for purposes other than duplication (Article 47, Paragraph 8).

Private audio recording compensation system (Article 30, Paragraph 2)

Digital duplication has little deterioration and it is possible to create products with the same quality as the original, so rights holders may suffer damage such as copied products leaking into the second-hand market as originals. . Therefore, persons who make audio or video recordings using equipment or recording media that have a digital recording or recording function specified by government ordinance are required to pay compensation to the right holder under the "Private Audio Recording Compensation Payment System." ” has been established.

(27 Agency for Cultural Affairs Commissioner's Secretariat Copyright Division "Copyright Text - For First-time Learners" p. 65)

Article 104-4 stipulates that the purchaser of the above-mentioned specified equipment and specified recording media must pay compensation if the designated management organization requests payment of such compensation for private recording at the time of purchase. It has been with. Furthermore, Article 104-5 stipulates that a person engaged in the business of manufacturing or importing specified equipment or specified recording media must cooperate in requesting and receiving compensation.

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