(Mainichi: February 29, 2016 – p. 6)
By Junichi Sakomoto, President and CEO, Shochiku, director, Motion Picture Producers Association of Japan
Japan lags other countries in global competition over the creation of new business innovations, such as Google’s new search engine service. This is probably the reason why moves to introduce fair use are spreading in this country. The Copyright Act is said to discourage the development of new services for fear of copyright violations. But is this argument true? The fair use policy implemented in the U.S. is premised on litigation. Google, for example, has developed a number of services by overcoming or undergoing a series of lawsuits it faced both at home and abroad. Copyright law has not shackled innovation in Japan.
Those who favor the introduction of fair use argue that the Copyright Act is unsuitable for cases associated with the Internet and other technological innovations. Under the existing law, restrictions are imposed on ownership rights of copyrighted materials through separate clauses, such as “private use,” “library use” and “educational use.” To revise the law, it is necessary to stipulate new clauses, but that process is said to take time.
But even if fair use provisions are put in place, it would still take time to settle a case. Which would take longer, undergoing litigation or enacting provisions to impose restrictions on individual cases? A court-led settlement would probably take longer.
In the U.S., Universal Studios sued Sony, a manufacturer of the Betamax home video tape recorder, alleging that the Japanese firm’s device allows for recording its movies broadcast on TV—which constitutes a violation of its copyright. The case, which was known as the Betamax litigation, was settled in favor of Sony at the Supreme Court in 1984. Under the Japanese law, however, recording of TV programs for home use is regarded as private use. Thus the Sony case would not have been brought to court here to begin with. Provisions in the Japanese copyright law are sufficient for handling such a case. Recent revisions to the law also allow people to use pictures on online search engines without the consent of copyright owners. By analogy, the introduction of fair use provisions would not seem necessary in Japan.
The introduction of fair use provisions would give rise to new concerns. Copyright owners may have to spend huge amounts of money to protect their rights. Unauthorized recording of movies at theaters is prevented following the enactment of the Act on Prevention of Unauthorized Recording of Films, but a spate of films are still uploaded to the Internet illegally one after another. We have been requesting the deletion of these contents, but if this does not work, we are ready to take legal action. But many of the illegal postings of movies have remained undiscovered.
Fair use would foster illegal users. That would increase the cost of measures against copyright infringement. If these costs are reflected in admission fees, for example, consumers will suffer. Creativity is driven by the enterprising spirit of becoming the “world’s first.” This leads to achievements and rewards that motivate producers to create interesting things.
The introduction of fair use may help people to gain without effort what others have achieved. If that practice spreads, creativity may wane, and Japan would be left behind other countries. The issue should be discussed based on careful analysis and examination of specific examples, such as Google’s business operations in Japan.