Center for Advanced Study & Research on Intellectual Property

 

CASRIP Newsletter - Autumn/Winter 2007, Volume 14, Issue 1

Argument for the Extension of the Copyright Protection over Cinematographic Works

By Hidehiro Mitani

I.          Introduction

On October 6, 2006, the Tokyo District Court denied injunctive and monetary relief sought by the American motion picture company, Paramount Pictures Corporation, and its collaborating Japanese company.  The companies had alleged copyright infringement through the distribution by unauthorized parties of the famous motion picture “Shane,” by George Stevens.  The competent authority for the Copyright Law in Japan, the Agency of Cultural Affairs of Japan, has aimed to protect masterpieces published on or after 1953, including “Shane.”  Although the Japanese legislature amended the relevant copyright law, the Agency seems to have failed in its scope, leaving “Shane” and other cinematographic works unprotected.

 

II.        Case Background

One of the plaintiffs in the “Shane” case was Paramount, a famous American company that produces and distributes many motion pictures.  Paramount owns the copyright to “Shane,” and Paramount granted the exclusive right of distributing “Shane” in Japan to V. Smith-Liddell, Ltd. and on April 26, 1953 V. Smith- Liddell, Ltd. assigned its right to Tohoku Shinsha, a Japanese company and a plaintiff in this case.  The defendants are two Japanese companies that sell movies by DVD, which are already in the public domain.

In this case, the defendants argued that “Shane” was already in the public domain and they started to sell “Shane” by DVD media without permission from either Paramount or Tohoku Shinsha.  Accordingly, Paramount and Tohoku Shinsha filed a lawsuit seeking injunctive and monetary relief against the defendants, alleging that the defendants’ acts infringed the “Shane” copyright.

“Shane” was first produced by Paramount in the United States, and then distributed later in Japan.  But, because the United States and Japan are both members of the Berne Convention, in Japan, Shane is under the jurisdiction of the Japanese Copyright Law.

III.       Amendment of the Copyright Law in Japan

In Japan, until 2003, the copyright for a cinematographic work continued in effect until the end of a 50-year period following making the work public or the creation of the work, if it had not been made public within a period of 50 years following its creation. 1  

Because the Agency of Cultural Affairs recognized that the duration of the copyright in cinematographic works was much shorter than that in the United States and European countries, the Japanese legislature, based on a report from the Agency, decided to extend the duration of copyright protection for cinematographic works.  Thus, in 2003, the Copyright Law was amended to extend the duration of copyrights for motion pictures from 50 years to 70 years.2  

This amended provision is applicable only to the copyright works which existed at the time when this amendment came into force, namely, January 1, 2004. 3 

According to the Supplementary Provision §2, for works published on and after 1954, the copyright will be protected until the end of 2004 or thereafter.  And, therefore, the amended provision clearly applies to those works.  As to the works published in 1953, however, the copyright was protected until the end of 2003, and the end of 2003 was 24:00 (midnight) on December 31, 2003, which is logically almost the same as 0:00 on January 1, 2004.  As such, according to the Supplementary Provision, it is unclear whether the copyright of motion pictures from 1953 existed at the time when the amendment came into force and would be eligible for protection for another 20 years.

IV.       The “Shane” Case

The Issue that the court addressed is whether the copyright of motion pictures published on 1953 will be protected for another 20 years.

The Tokyo District Court determined that, implying the fault of the Agency of Cultural Affairs of Japan, the copyright of the motion pictures published in 1953 had already expired and denied the injunctive and monetary relief.  The main reasons for the court’s determination are outlined below.

A.      Literal Interpretation

The duration of copyright protection for cinematographic works is based on years (§54, §57) whereas copyright protection expires when the last day is over (Civil Law §140).  Moreover, the date of implementation for the amended law is regulated on a daily basis (Supplementary §1).  As such, when judged on a daily basis, December 31, 2003 is not the same as January 1, 2004, and there is no overlap between these days.  Therefore, at the time the amended law came into force, December 31, 2003 had passed and the copyright expired by the passing of that day.

As the copyright law defines the range of the protection of copyrighted works and will provide the basis of not only civil, but also criminal sanctions, the court determined that it should interpret copyright law based on the knowledge of the average person.  When the average person looks at the regulation itself, he is likely to interpret that the amended law would not be applicable to the work when the copyright expired the day before the date of the implementation of the amended law.

B.       Interpretation of the Legislature and the Agency of Cultural Affairs

In Japan, the Agency of Cultural Affairs is the competent authority with the responsibility to assess the current situation related to the Copyright Law and to make bills for amending the Copyright Law.  In this case, the Agency consulted the advisory council, which was comprised of several copyright experts, and after discussion, the council finally reported to the Agency that the copyright for cinematographic works should be protected for 70 years, instead of 50 years.  Consequently, the Agency prepared a draft amendment for the Copyright Law, such that the legislature actually amended the copyright law in 2003 pursuant to the draft amendment.

During this process, one officer of the Agency, who was in charge of explaining the current situation surrounding the Copyright Law to the members of the council, prepared and distributed to the council the material emphasizing the crisis of the motion pictures business in Japan, resulting from the expiration of Japanese cinematographic works published in 1953.  In addition to the material, the opinion in the official documents, which was made by the Agency after the amendment of the Copyright Law to explain the amendment, shows that the amended copyright law should be applicable to cinematographic works published in 1953, and that they would be protected for an additional 20 years.  Thus, the Agency consistently has interpreted the amended provision to be applicable to cinematographic works.

The court, however, found that the materials used in the council showed that there was no evidence indicating that the legislature itself thought the amendment was applicable to the cinematographic works of 1953, based on discussion in the legislature.  Furthermore, the court held that the interpretation of the Agency does not have any binding authority on the courts.

VI.       The Current Situation

After the judgment, the plaintiffs soon appealed to the Tokyo High Court, and this higher court has yet to render a judgment for this case. 

There are many masterpieces which were published on 1953, such as “Shane,” “Roman Holiday,” as well as other well-known Japanese motion pictures, including “Tokyo Story” by Yasujiro Ozu.  The copyrights for these works are currently considered expired.  Therefore, if the district court’s judgment is upheld by the High Court, the loss which many copyright holders would suffer would be extremely high.  As a result, the outcome of the Tokyo High Court in this case will be a landmark judgment and the proceedings should be carefully monitored.


Hidehiro Mitani is a student in the Intellectual Property Law and Policy LL.M. Program at the University of Washington School of Law.

1 Copyright Law §54(1) (1970).

2 Copyright Law §54(1)(2003).

3 Supplementary Provision (Law No. 85, 2003 amendment) Sections 1 and 2.

 

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Last updated 4/27/2012