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A central issue facing DL developers everywhere is what use can be made of copyrighted content. Can it be indexed, cataloged, summarized, displayed, distributed, translated, spoken, modified, colorized, morphed, compressed, archived, and mirrored? The general answer is that some of these actions are permissible without permission of the owner and others are not2. It is a separate question what technological mechanisms can be employed to allow that which permissible and render the remainder impossible.
If permission of the copyright owner is required to make particular use of a work, the question reduces to finding the owner, obtaining the permission and rendering any required payment. This process, when performed manually, is extraordinarily slow and is completely inconsistent with the notion of an online DL. Furthermore, the requested permission may be refused, or may be selectively granted to those who are friendly or sympathetic to the owner. If the ultimate goal is to facilitate the widespread online use of information, with due compensation to owners of content, a system in which certain permission may be refused is a stumbling block. The Japanese copyright system provides the basis for a solution to this problem.
Copyright in the United States primarily protects economic rights, that is, the right to derive income from one's works. The European system leans more heavily toward the protection of moral rights, those for which violation does not necessarily cause monetary damage but results in harm to the creator's reputation, the integrity of his work, or his right to be acknowledged as an author. The systems differ in their treatment of published works. Once an author has chosen to make his work available to the public, how much control may he retain over its use? In a system focused on economic rights, the control is designed to ensure that others do not profit unfairly from the work. He who creates and publishes gives up a measure of other types of control. There is an implied compact with society that in return for one's intellectual production, a limited monopoly is granted to exploit the work for profit. After a certain time, the rights of any author and owner dissolve, and the work enters the public domain, from which it may be freely used by all. The question in comparing economic and moral rights systems is what public uses are permitted from the time of publication until entry into the public domain. A moral rights system views the compact as more favorable to the author. He has greater control of the work as necessary to protect his reputation and that of the work.
In the DL context, if authors in an economic copyright system can be induced to grant licenses in return for monetary compensation only, an economic scheme must be devised to measure usage and direct the appropriate payment properly. However, the whole arrangement is legally feasible if technology can be developed to support it. A moral rights system imposes potentially insuperable barriers to DL since authors may simply refuse permission for non-economic reasons and the system will uphold their judgment. In such a case, unless a solution is found, a DL will have to be satisfied with only public-domain material and that for which express permission has been obtained.
Even in an economic rights system, the owner is able to set an unreasonable price for usage of his work. While this may mean that he derives no income because he finds no takers, the effect is that the public is deprived of the ability to use the work, which is the equivalent of a moral rights system. A solution is afforded by the notion of "compulsory licensing." This idea, already partially implemented in many countries, is that the author and owner cannot refuse permission for certain types of usage, but the user must pay an established fee that is not set by either the owner or user, but by an independent authority.
Compulsory licensing exists in the United States, but is extremely limited. It is confined to the making of phonorecords of nondramatic musical works.3 In simple terms, if one wants to record a song the copyright owner cannot stop him, even if the performer can't sing a note. All one has to do is serve a notice on the copyright owner of an intention to invoke a compulsory license in his song. One then pays a fixed fee (based on the length of the recording) for every copy made. The fee is set by statute and does not vary based on the nature or popularity of the work recorded. Popularity enters into the picture indirectly; if the recording become a best seller, both the performer and the copyright owner will benefit.
Compulsory licensing is beneficial to DL because: (1) material can be made available to all at a fixed price known in advance; and (2) technological solutions exist to record licensees and secure payment. In the United States, the provision will have to be expanded to include various uses of all copyrighted works, not just phonorecords of musical works.
Unless a compulsory license in available, in the United States the copyright owner has an absolute right to prevent use of his property (subject to "fair use" exceptions, which ordinarily do not include commercial uses). The right does not have to be exercised reasonably or fairly-it is a property right entitled to slavish protection. The situation, as we shall see, is very different in Japan because of extensive compulsory licensing.
Suppose a radio station wants to play music all day long. (Playing music is not subject to compulsory license; that's restricted to making recordings.) It would be impossible for the station to negotiate with the copyright owner of every piece it might want to play. To solve this problem, the United States recognizes certain performing rights societies (such as BMI and ASCAP) that secure the performance rights to large collections of music and license them in toto to numerous licensees, such as radio stations, restaurants, nightclubs and the like. The royalties are pooled, and distributed to the copyright owners based on statistical estimates of usage.
Performing rights societies are beneficial to DL because (1) material is easily available through large catalogs that can be maintained online; and (2) precise measurement of usage is possible to permit accurate distribution of royalties.
The Japanese copyright system is approximately 100 years old, less than half that of its U.S. counterpart. It deliberately combines features of both the U.S. and European systems and is much more refined than either in the area of modern technologies, such as software, databases and digital transmission. Japan is a party to most major international copyright agreements, such as the Berne Convention, respecting the rights of foreign authors.
Under no circumstances should Japan be confused with certain other Asian countries that have only limited regard for copyright. Japan is even more respectful of copyright than the United States, and government DL policy is specifically crafted to acknowledge such rights. The MITI report states, "To prevent unlawful duplication, strict enforcement of the Copyright Law is necessary, as well as raising the awareness of all users regarding this issue, and proper management of software by enterprises and others so as to prevent illicit duplication by employees ..."
The Japanese culture esteems individual artistic creativity, a point that is reflected in its copyright laws. There is a prevailing Western misunderstanding that creativity is discouraged in Japan because it conflicts with group harmony and collective decision making. Some authors compound the error by using it to "explain" the gap in software development between the United States and Japan. If anything, the Japanese find art and creative expression in many directions that would be considered mundane in the United States. This is relevant to DLs because (1) DLs create new opportunities for individual expression and publishing; and (2) DLs make heavy use of multimedia, combining work from many sources (such as calligraphy) that are protected in Japan. The Japanese system is richer than the U.S. system in the following ways that impact DLs:
In the United States, copyright is administered by the Library of Congress (LC), part of the legislative branch of government. Its principal role is to ensure that Congress has access to extensive holdings of research material for its deliberations and, to that extent, is archival in nature. Our statute provides for copyright registrants of published works to furnish the Copyright Office with two copies of the work, one of which will repose in the LC. The copyright system therefore provides a guaranteed flow of material into the LC.
The Japanese copyright system is administered by the Agency for Cultural Affairs (ACA) of the Ministry of Education, the same ministry that promotes DLs throughout Japan. The Japanese view the copyright system as an adjunct to education rather than as an archival or primarily legal function. This permits Japan to turn its copyright function and policies in the direction of DLs with much greater ease than in the United States, where an act of Congress is required to implement any significant policy change.
The ACA established a Special Office for Multimedia in 1992, and the National Diet Library has enacted new rights specifically addressing copyright in digitized and networked environments.
Japan greatly respects proprietary rights of all kinds, including intellectual property. The crime rate is low, which indicates a nearly universal regard for personal property. The author's own experience is that the Japanese are honest to a fault, and appropriation of the work of another is virtually unthinkable. This tone is reflected in the copyright system, which provides many avenues for obtaining use licenses and ensures equitable distribution of profits to creators.
Litigation is generally rare in Japan, and copyright cases more commonly involve difficult issues of law, such as what is copyrightable, rather than instances of piracy, which are severely punished as crimes. While in the United States certain types of infringement may be prosecuted as crimes, in Japan any infringement of a copyright, moral right or neighboring right (discussed below) is subject to fine and imprisonment.
The Japanese copyright law is an expanded grafting of U.S. and European (moral rights) legislation, harmonized to a great extent with international conventions. It recognizes copyright and the moral rights of attribution and integrity, which last for the life of the author plus 50 years, as in the United States. Copyright in the United States comprises a bundle of five rights, which may be further subdivided or separately licensed by their owner: reproduction, preparation of derivative works, distribution, performance and display. Japanese copyright (chosakuken, literally, "authorship right") recognizes at least 12 separate rights, some of which have no counterpart in the United States. Furthermore, in Japan these rights are more finely divisible than they are here.
Japan provides for a statutory "right of publication" (shuppanken), which is separate from ownership of the work and imposes an obligation on the holder of the right to publish the work within three years from the date of grant, even in the absence of any agreement between the owner and the publisher. Other rights having no direct U.S. counterpart are the right of recitation and the right of the original author in the exploitation of a derivative work.
Japanese moral rights (jinkakuken) are also more extensive, including the right to edit subsequent publications of a work, terminate a right of publication under certain conditions and prevent use of a work in conflict with the author's beliefs.
Japan recognizes "neighboring rights," which possess only rough analogues in U.S. law. These are very modern and include the right of interactive transmission, a critical protection for Web developers, and the right of "making transmittable," which means transforming a work so that it can be broadcast or sent over networks. The category also includes the right of rebroadcasting and various cable and sound recording rights.
Japanese copyright law protects "databases which possess creativity in the selection or systematic organization of ... information," a fact of great significance to DLs. A database is defined as a computer-readable collection, which includes everything in a DL. The United States is now struggling with protection for databases, and even the present bill before Congress (H.R. 2652) has been found by the Justice Department to be unconstitutional because copyright in the United States is limited to works of authorship rather than products of industrious collection4. It is unclear whether extensive protection for databases or an absence thereof would do more to promote digital libraries. However, uncertainty over the matter is not likely to help.
Japanese copyright law is better suited to protection of interactive media displays. For example, in the United States the shape of the letters in a type font is not copyrightable5. In Japan, artistic calligraphy is copyrightable.
Compulsory licensing in Japan is extensive in ways that bode well for digital collections. A major digitization problem in the United States, for example, is raised by out-of-print works that are not so old as to be definitely out of copyright and whose copyright owner cannot be located. If one of these works is digitized and added to an electronic library, the operator risks being sued at any time, assessed damages and ordered by injunction to delete the work. Moreover, any computer on which the work is resident may be seized without notice. On the other hand, it is likely in many cases that either the copyright has expired or that the owner, even if he becomes aware of the use being made of the work, will interpose no objection. There is no safe procedure in the United States to make use of out-of-print materials except permission of the copyright owner.
The situation is different in Japan. If the copyright owner of a work cannot be located after diligent effort, the potential user need only to apply to the ACA for a compulsory license. A royalty rate will be set, and the user must pay the royalty to the ACA, where it will be held in the event the author surfaces. If so, the author may not prevent use of the work, but must be content with the established royalty. It is obvious that such a provision facilitates digital libraries because such material can be used without risk (but at some cost). In Japan, compulsory licensing applies to the following areas:
These are the Japanese counterpart of performing rights societies in the United States. They are non-governmental organizations (NGOs) representing a significant component of the community of creators, usually divided by type of work, such as books, music, and the like. When no compulsory license is available under Japanese law, resort may be had to the author's rights organizations to secure bulk licenses. The set of such entities in Japan is much more populous than it is in the United States and includes the following:
In the event that no compulsory license is available and licensing is not managed by an author's rights organization, an individual negotiation with the copyright owner is required. In the United States, merely locating the copyright owner can be a formidable chore and sometimes requires legal counsel to conduct a search, which at best is unreliable.6 In Japan, resort may be had to J-CIS, the Japan Copyright Information Service, an organization that exists specifically to facilitate the licensing of copyrighted works, and one that has no counterpart in the United States
"Fair use" in the United States is an activity that would literally constitute copyright infringement if not for a legally recognized exception. In addition to a wide menu of compulsory licenses, there is a wider recognition of the fair use principle in Japan than in the United States. For example, personal use in Japan is almost always fair. The United States instead looks at the economic loss to the owner, and concludes that a use is usually not fair if it affects the demand for the original, which is not the test in Japan. Fair use, of course, promotes digital libraries to the extent they facilitate such uses.
Prof. Makoto Nagao, now President of Kyoto University and the leading academic proponent of digital libraries in Japan, has put forward a proposal for modification of Japanese copyright law and policy to promote digital libraries (Nagao n.d.). It begins with the premise that authors and publishers must be paid for their works. Its salient points are:
Prof. Nagao then delves into the problem of how to charge for the use of works, a topic discussed in the next section.
No one seriously suggests eliminating copyright to promote the digitization of information. The result would be a precipitous decline in professional writing. The U.S. stance on copyright is rather inflexible-any effort to expand the use of works is seen as a threat to revenue and hence a detriment to economic interests. In Japan, on the other hand, copyright is seen as a tool to serve society, education in particular. While the Japanese assiduously protect private interests, they regard financial compensation as sufficient and do not invest authors with the near-absolute power to control the source of that revenue. Japan therefore leads the United States significantly in the area of copyright policy and implementation as it applies to digital libraries.