【Research Center for the Legal System of Intellectual Property】

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Does Knowledge of Copyright Law Make Us Hesitated to Use Copyrighted Works?

RC Taro Hirayama

Although I am too busy to being a member of a choir recently, I have belonged to a choir for a long time since I joined the high school choir, almost compelled by the music teacher who managed the high school choir. At that time, I had no idea of what the "copyright" and I did not know where I could get a music score. I remember I only received it from the teacher and sang it everyday.

However, when the choir members including me had to manage the concerts, I came to know that we should avoid making a photocopy of a music score if possible and we should apply for the permission of using it to JASRAC in advance. I came to know what the "copyright" meant then. We had to pay about 30 thousand yen for the royalty fee when we used many modern music pieces, that is, the songs whose copyrights were still valid. It was a serious problem for the college students to pay it in addition to the cost for the concert hall. It even made me think that people played old classical music because of the royalty fee.

When I started working, I gained a lot of knowledge about the copyright and realized what I had done in the past was illegal as I had thought. On the other hand, I used the rule that the use of the music became free for a noncommercial concert by making our choir's concert free of charge. However, we had a payment to a conductor or an accompaniment. So I think probably we did not meet the requirement of a proviso of Article 9-(1).

The case that I still do not understand is a case of photocopying a music note when the publisher goes bankrupt.

It was the case where the choir that I was with took part in a music contest. We had to submit the copies of our song to each judge of the concert. As the conductor's wish, we were due to sing one of Hungarian traditional folk songs by Bart?k, a Hungarian composer (1881 - 1945). Only German score was available in Japan for this song at that time. But the teacher, the conductor, insisted to sing it in original language, so we decided to use the original note in Majyar that the teacher bought at second hand in Budapest. (It seems that there are some secondhand shops in Budapest just like used bookstores in Jinbocho in Japan.) However, the publisher did not exist then and we had only one score that the teacher owned. So we had to make a photocopy of it for all the choir members as well as for the judges.

For playing the song, the concert organizer should have obtained the use permission from JASRAC. However, for copying it, we had to get permission from the publisher, who did not exist. According to the Copyright Law of Japan, the right of publication shall expire at the end of a period of three years from the first publication (Article 83). In that case, we had to get permission from the copyright owner instead of the owner of the publication right. But we did not know what contract was made between the copyright owner and the publication right owner. Article 67 of the Copyright Law of Japan prescribes exploitation of works in the case where the copyright owner is unknown, but it is not certain that we can use this provision for the case where the owner of the right of publication is unknown.

Although we talked to the organizer and were accepted in that year, I assume the organizer did not make it clear anyway. If it were today, we would have to change the number to other one.

With these experiences, I do not intend at all to advocate adoption of fair use clause to Japan. However, if we interpret the current law rigidly, those acts that are not clearly defined in the Copyright Law will be considered as infringements unless users get permission. Probably the cases I mentioned seldom go to the court in practice. As I learned a lot, I became more hesitated to use copyrighted works. It is very questionable whether the current situation as such really leads to cultural development, which is an aim of the Copyright Law.