On the Eve of the Upcoming Extension of Copyright Terms...

2018/06/26

"In 1769, an incident occurred in England regarding the matter of publishing rights. There was a debate as to whether publishing rights should be the permanent private property of the author or whether the term should be limited. Ultimately, following the deliberations of the Parliament, it was determined that there should be a term limit, and during that term, the law granted the author the exclusive right of sale." Yukichi Fukuzawa, Appendix to Things Western (Seiyō Jijō Gaihen), Volume 3 (The Collected Works of Yukichi Fukuzawa, Vol. 1)

As already pointed out in Things Western (Seiyō Jijō), the mechanism of a copyright validity period (legally known as the "term of protection") has existed for 250 years. In Japan today, the general rule for the term of protection begins with the creation of the work and lasts for 50 years after the author's death. For example, Edogawa Ranpo passed away in 1965. Therefore, his 1924 detective novel "The Murders on D. Hill" (in which Kogoro Akechi first appears) is protected by copyright for a total of about 91 years (!)—the 40-plus years until his death plus the 50 years following it.

Hearing this, one might think, "That is a sufficiently long period," but it is almost certain that the copyright term will soon be extended by another 20 years. In fact, the current Japanese standard of 50 years after death is merely the minimum level set by international copyright treaties to which almost every country in the world belongs. There are countries with even longer terms; for instance, the United States and EU member states have a term of 70 years after death, and Mexico's term lasts as long as 100 years after death. This upcoming extension is for the sake of "international harmony" with the 70-year group, such as the U.S. and the EU.

Specifically, the TPP (Trans-Pacific Partnership) and the EPA (Japan-EU Economic Partnership Agreement) are the keys. Under the TPP, signatory nations were obligated to set the copyright term at 70 years after death. Although the extension was temporarily left in limbo when the TPP failed to come into force due to the withdrawal of the U.S., Japan is moving toward realizing the extension when the TPP11 (without the U.S.) takes effect (while the extension is frozen under the agreement, it is based on Japan's own discretion). Furthermore, in separate EPA negotiations, it has been agreed that the term should be 70 years after death. As a result, the extension is expected to be realized whenever either the TPP11 or the EPA comes into effect.

By the way, at first glance, extending the copyright term may seem to serve the strengthening of the rights of authors such as writers, lyricists, and composers, while the burden is borne only by users such as readers and viewers. However, if viewed from a macro rather than a micro level, a long copyright term is also a burden for authors. Since copyright is nothing other than the state's recognition of a monopoly over the unique "expression" created by an author, the natural consequence is that copyright can become a constraint when others seek to express themselves. In other words, extending the copyright term also means extending the period during which expression is constrained.

In the United States, there was a court case contesting the validity of a law extending the copyright term. One of the points of contention was the relationship between copyright and freedom of expression. The issue was a law enacted in 1998 that extended the copyright term by 20 years to 70 years after death (known as the Sonny Bono Act, after its proposer). The U.S. Supreme Court stated that copyright serves as an engine of free expression by providing economic incentives for the creation of expression. While acknowledging the tension between copyright and freedom of expression, the Court noted that copyright law already contains two internal "accommodation" features that protect freedom of expression: (1) the principle that copyright protection is limited to expression and does not extend to the ideas or facts underlying the expression, and (2) the existence of general fair use provisions that limit copyright to allow the free use of expression in certain cases. Thus, the Court did not find the Sonny Bono Act to be unconstitutional.

Regardless of the specific conclusion, the reasoning shown in this ruling is highly noteworthy in its fundamentals. To abstract its statement slightly: while it is inevitable that copyright has both an aspect of constraining expression and an aspect of promoting it, in light of the importance of freedom of expression, it is required that legal systems be designed and laws be enforced and operated with care so that the former does not outweigh the latter.

As of the writing of this article (May 2018), the Japanese Diet is deliberating a bill to amend the Copyright Act to establish more flexible provisions for copyright limitations. This amendment is a direct response to long-standing suggestions that Japan's provisions for limiting rights lack flexibility compared to those in the U.S., especially as the environment for using copyrighted works changes significantly due to recent advances in information and communication technology. However, from the perspective mentioned above, this can also be seen as an important amendment in relation to the expected extension of the term of protection in the near future.

*Affiliations and titles are as of the time of publication.