Japan Moving Towards Fair Use?

According to an article on Japan Today, an advisory panel in the Japanese government has approved “a plan to tolerate the unlicensed use of copyright works.”

Under the panel’s suggestion, copyrighted works caught in the background of a film or picture will not need to be licensed.  Photo credit: Japan Firefox DevCon 2006_4209 CC-BY-NC-ND Gen Kanai available at Flickr.

This tolerating attitude only applies to certain unlicensed uses and appears similar to fair use and fair dealing concepts.  Currently, the allowed uses are much more vague than a specific fair dealing list, and even a bit more obtuse than the US’s four-factor fair use test.  So far, the Japanese allowed uses seem to focus on the nature of the use:

“use of a copyrighted work may be tolerated if the use itself is not the main purpose and the dependence on it is light, if the use is minor and reasonably required in the course of a legal use, or if the use is not aimed at seeing or hearing copyrighted expressions.”

Commenter Mr. Dog - who has invested a lot of energy into explaining the difference between copyright and trademarks, patents and what-you-think-IP-is in the comment section – noted that a fair use type of protection would bring Japan more in line with the rest of the world.

This plan may see draft legislation as early as next month.

Copyright Law, Getting in the Way of Getting Copyrighted Works

“The biggest barriers that consumers face in accessing copyright works
are those created by copyright law.”  And with that profound statement, Consumers International begins its exploration into how copyright and consumers interact, investigating the barriers consumers face when attempting to find information.

The book is Access to Knowledge for Consumers: Reports of Campaigns and Research 2008-2010, and it presents the findings of two years of studies conducted by Consumers International.  These studies included surveys of consumers across a wide variety of countries, in-depth reviews of the effects of enacting new flexibilities in the copyright laws of Australia and Israel, and reports from six country groups involved in advocacy at the national level.

Consumer Survey

The global survey looked at potential barriers to access (to knowledge) in four different categories: Political, Economic, Social and Technological.  The book includes a full copy of the survey questions, highlights of notable qualitative answers and full charts of quantitative breakdowns.  Unfortunately, the charts are a bit hard to read sideways on a computer screen.  A surprising finding of the survey was that African consumers have the highest respect for copyright law.  A not-so-surprising finding was that consumers are confused about FOSS (free and open source software) and open licensing.

However, in combination with the other studies, Consumer International also found:

Part of the solution to the access barriers that consumers face is the wider use of open content, such as Open Educational Resources (OER) and free and open source software (FOSS). Our survey found that most consumers are aware of these alternatives, and ready to give them a try.

Based on this information, Consumers International has identified “the need for education of consumers on the unique features of FOSS and (though not covered in the phase one survey) other forms of free licensing such as Creative Commons.” 

Copyright Law Flexibilities

Australia’s 2006 amendments to its copyright act added flexibilities that made time-shifting and formatting-shifting legal.  Before the enactment of the amendments, arguments arose that the amendments would interfere with the markets for legal downloads and a threat to nearly every type of copyright protected work.  Results of the research conducted revealed that the content industry’s nightmares did not come true. 

[T]here was evidence to suggest that the amendments may have increased compliance with the law – not only by legalising the common and harmless consumer practices in question, but by improving some consumers’ respect for the fairness of copyright law in general.

When looking at Australian’s perspectives on whether and when it is ok to download copyrighted material, the book again presents a mix of quantitative data and qualitative information. Some of the justifications of those who feel it is ok to download to their heart’s content are rather amusing.

“Because when I see what happens, when people like Britney Spears
get paid what they do and act like they do. This means to me the
entertainment industry can kiss my arse!!!!!!!!”

Israel introduced fair use into its British-based copyright act in 2007.  To study the effects of the introduction of this provision, researchers compared case law before and after 2007.  The concept of fair use existed in Israeli copyright before 2007, but it was not codified.  Results of the analysis was slightly disappointing but hopeful.  Finding that fair use claims rarely succeeded and that courts were applying the doctrine in disparate ways, the researchers also expressed belief that this will change with the progression of more cases.

In conclusion, we find the law in Israel, while evolving to meet the
new digital creativity landscape, still lacks the balance which will reflect the social understanding of what should constitute a fair use and how copyright can foster creativity and innovation.

Country Group Reports

The book includes reports on national advocacy from Brazil, Cameroon, India, Nigeria, South Africa and Zambia.  Each of these reports discusses activities done in the country to promote access to knowledge and the strengths and weaknesses of these activities.

 

Access to Knowledge for Consumers: Reports of Campaigns and Research 2008-2010 is a 336 page book, but it will not cause you back strain.  The entire book is available in pdf, released under a Creative Commons BY-SA license.

Possession. Against the (Copyright) Law

The Malaysian Star reports on some public backlash to a proposed amendment to the Malaysian Copyright Act.  The amendment has been in discussion for about a year now but is not yet law.  If the new amendment is enacted, persons found in possession of infringing DVDs will be fined five times the cost of the legitimate version. (see here.)

I have been unable to locate a copy of the proposed amendment.  It appears from looking at the current act that this amendment would change Section 41(d), which currently says that it is an offense if a person “possesses, otherwise than for his private and domestic use, an infringing copy.” (emphasis added) 

The purpose of the amendment is to help limit the amount of trade in infringing DVDs, CDs, and other forms of amusement delivered in disc form, by discouraging people from purchasing them.  The general idea is that reducing the market for infringing goods will help the creative industries in Malaysia grow and contribute to the nation’s economic growth.  (For more background see MIP Handbook.)

Without having a copy of the amendment, it is hard to know what the real consequences of the change could be.  For example, if the punishment is a fine but the person has to be seen with the infringing disc in public, then it might be considered a reasonable step towards lowering infringement. However, if Section 44 of the Copyright Act will apply to the offense of possession as it does to all other offences, there may be a bigger issue.  Section 44 allows a magistrate to grant a warrant that allows the police to enter suspected premises at any time and seize infringing materials. 

Based on the information in the Star article, details like whether Section 44 will apply are still being worked out.  Concern about potential police raids of private homes was not the comment from the Malaysian people.  Some are worried that the government is acting out of desperation, while others claim the producers of infringing goods should be the target rather than the consumers.  (In all fairness, the Copyright Act does already include making and distribution as offenses and reports of successful factory raids have appeared in the papers.)

In addition to knowing whether Section 44 applies, one might also wonder, “Can consumers distinguish an infringing copy from a legitimate one?” and “Do people know where they can purchase legitimate copies?”  In some places, like Nigeria, the answers to these questions are often “no.”  If that’s the case in Malaysia, how will enforcement of this amendment work?

Which is the original? Image credit: CC BY NC SA 2.5 Malaysia by Yihzy available at http://www.yihzy.com/wordpress/?cat=9

If anyone has a copy of the amendment or knows more about the relationship between infringing and legitimate DVDs in Malaysia, The 1709 Blog would love to hear from you.