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"Copyright protection is an urgent task, but excessive protection allowing
no copying may damage the functioning of society, which grows with
impartiality and imitation" (The Japan Times Online 21-02-2002).
Here are some examples: Downloadable tunes for mobile phones. The only way to
get these tunes is by creating a sort of user account on a provider's
website and agreeing with a click-wrap contract that allows you to download
a certain amount of tunes for X Yen. This kind of system is in fact a sort
of trusted system, although we are maybe not aware of it. Mamoru Kato, a JASRAC executive, said during a press conference after having set new fees
(in cooperation with the Network Music Rights Conference) for downloadable
tunes that "the(se) new agreements will help enlighten Internet users, many
of whom believe music can freely be copied from the Net. We have to teach
them that you shouldn't use other people's assets for free, by opening up a
legal window for them to use" (The Japan Times Online 18-08-2000). In other
words, the clever user who tries to free ride on the original genius of the
creator of this or that tune has to be educated and is forced to participate
in a trusted system in order to obtain the desired tunes. Did anybody talk
about fair use or else, the reach of the public domain? No.
And there are more examples. Think for instance about the fact that very
soon CDs will be copy-protected in Japan (Avex and Warner Music Japan sell
already copy-protected CDs) (The Japan Times Online 21-02-2002; ibid.
03-04-2002). Steven McClure, journalist for The Japan Times Online and
author of the latter quoted article comments on this evolution with
skepticism. His statement: "Many people, though, say copy-protected (or
copy-controlled) CDs go against the concept of "fair use" - which means the
user should be able to make copies of entertainment software as long as
they're for personal use. One problem, of course, is defining just where
personal use ends and illegitimate copying begins." (The Japan Times Online
03-04-2002). And what about the copy-once system - a system that allows you
to record television programs only once - which is now in a test phase in
Japan, but will probably be used in the near future by several broadcasting
companies (The Japan Times Online 21-02-2002)?
In the book "Copyright System in Japan", written by the Japan Copyright
Office, the title of this section is "to secure the effectiveness of
rights by utilizing new technologies" (Japan Copyright Office 2001, 32).
This is another example that shows clearly that the Japanese government
considers code as a tool that can be used to enforce copyright legislation.
There is no mention of possible negative side-effects concerning fair use
(limitation on rights) or the reach of the public domain.
In the section about the "regulation of the circumvention of
technological measures such as copy protection, etc.", it is stated that
"transfer to the public (of) the ownership of, and manufacture, etc. of, the
devices to circumvent technological measures (e.g. copy protection) which
prevent copying of videogram (sic) or music CD without authorization are
regulated by the (sic) criminal penalty" (Japan Copyright Office 2001, 32).
It is quite clear that by this regulation, it becomes impossible to
circumvent the copyright-protection of intellectual property in the context
of fair use. This means that when a CD, etc. is copyright-protected, there
is not only technically no space for fair use, but also from the legislative
side there is no support for copying in the context of fair use.
The "regulation of the alteration etc. of the rights management
information" section strengthens the first regulation by saying that it is
forbidden to remove right management information attached to the work.
However, it is to be said that this provision doesn't seem to limit
immediately the reach of the public domain. Mentioning the source, etc. of
the quoted material is generally considered as appropriate.
Another example is the harsh reality that it is impossible to play
copyright-protected CDs on the CD-ROM drive of a computer. Imagine a
businessman traveling with the Shinkansen, who likes to listen to his
favorite (copyright-protected) CD by means of earplugs and a multimedia
player installed on his laptop. What about his "right" to play CDs on his
laptop? Why is he obliged to buy a portable CD-player, instead of using the
CD-ROM drive? These examples show that, if trusted systems (and look-alikes)
want to play an important role in the future without intruding on anonymity,
etc., one will have to incorporate these values as gaps in the architecture
of these trusted systems. It is to be doubted that this will happen.
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