Obscure copyrights in Asia – and what they mean for vintage films

28 February 2023

Obscure copyrights in Asia – and what they mean for vintage films

With the Japanese government introducing amendments to its copyright law that would make it simpler for individuals to distribute vintage movies and music, what does this mean for copyright protection overall in the country? 

In Japan, copyrights are immediately given when content is developed. Unlike other nations, such as the United States, that permit fair use without permission under specific conditions, secondary sharing of copyrighted information in Japan is not permitted without the rights holder’s approval. However, this poses issues because there are sometimes several copyright holders for movies, and it can be challenging to identify the writers of older works. 

“For a long period of time, obscure copyright works have been an issue in Japan, and Japanese law has allowed sharing obscure copyrights to a limited extent,” says Kensaku Takase, a partner in the IP Tech group at Baker McKenzie in Tokyo. “Under the current copyright law, there is a system where obscure copyright works can be used on the condition that a decision from the chief of the Cultural Affairs Agency which allows using the obscure copyright works is obtained and deposits are paid. However, in order to obtain a decision from the authority, a person who intends to share the copyright needs to make reasonable efforts to find and contact the copyright owner before requesting a decision.” 

“Reasonable efforts” required under the system can be very burdensome for the person who intends to use the copyrights. In particular, such person needs to take the following measures: 

  • Conducting online searches, searching in lists of right holders or, if the right was subject to this system before, searching in databases published by the authority; 

  • Making inquiries to copyright collecting agencies such as JASRAC, relevant organizations such as the Japan Cartoonists Association, academic societies, and universities or the authority; 

  • Seeking information from the public by posting advertisements in newspapers or a website of a public benefit company named Copyright Research and Information Center; and 

  • Trying to contact the right holder based on the information obtained through the above.  

“After taking the measures, a person who intends to share a copyright needs to request a decision to the chief of the Cultural Affairs Agency,” he says. “It generally takes two months to get the decision after filing a request. Therefore, currently, this process is only usually followed by publishers, broadcasters or libraries.” 

Obscure copyrights and new technologies 

Takase adds that currently, as new technologies and online services such as SNS services, Metaverses, and NFTs, are developing, it is becoming more popular for individuals to create and share artistic works. 

“Also, the need to create art by changing or modifying existing art is increasing,” he says. “On the other hand, the number of obscure copyright works will increase as creators are increasingly publishing their works on an anonymous basis. Accordingly, it is our view that the existing copyright system should be changed to allow using obscure copyrights more easily.” 

He adds: “That being said, the ability to more freely share content with obscure copyrights without limitations may cause damage to the actual copyright owners. If efforts are not made to identify the copyright owners, the copyright owners’ rights such as those to obtain license fees and royalties, and be acknowledged as the creator of the work, may not be properly respected. Therefore, clearly defining obscure works and perhaps having some form of clearance mechanisms in place may be prudent.”  

Currently, the Copyright Subdivision of the Cultural Council under the Cultural Affairs Agency is considering amendments to the Copyright Act such as creating centralized contact points that can be more easily approached for searches as well as a centralized database to make it easier to find copyright owners. The agency is also looking to introduce new methods to enable the easier use of obscure copyright which will replace the current burdensome system. 

“The Copyright Subdivision is proposing to allow the entity that has sought clearance through the centralized contact points and database to use the copyrighted work should the right holder not be identified,” says Aya Takahashi, an associate in the IP Tech group at Baker McKenzie in Tokyo. “The entity would likely need to pay a license fee to the centralized contact points. Once the entity pays a license fee, it will be able to start using the copyrighted work temporarily. During the period of temporary use, the centralized contact point will issue a public notice so that right holders may object to such use or seek a license fee. If the right holder does not make an objection during the period, the entity can continue to use the copyrighted work.”  

She adds that if this method is introduced, the burden for the entity that intends to use the obscure copyright will be considerably reduced.  

“The entity will not need to take multiple measures to find copyright owners such as conducting online searches, contacting relevant organizations or seeking information from the public and then seeking a decision from the chief of the Cultural Affairs Agency,” she says. “This should allow the entity wishing to use the copyrighted work to do so within a shorter time period. Theoretically, a right holder may be able to make objections against the use of the work and seek a license fee.”  

She adds: “The committee is also considering other amendments to Japanese copyright law, so we need to keep eye on the future developments of the discussion.” 

China and orphan works  

In China, the China National Knowledge Infrastructure (CNKI), a private-owned publishing company, has revealed a series of copyright infringement cases in recent years. Activist works are often articles published in journals in the 1960s and 1970s or beyond, when journals did not have a license with the author to reprint their work in today’s digital journals. In fact, these works are more-or-less known as orphan works.  

With the explosion of information and the iteration of knowledge, there are few libraries now that still have such an ancient collection of journals. Even if a few libraries hold these journals – and even if those journals can be retrieved by users – the author’s information and contact information on the works are often unavailable.  

“When Chinese courts make judgments on these copyright cases, they often find that the user constitutes copyright infringement because the authorization chain is incomplete,” says Cherry Chunfei Guo, a senior partner at Beijing Tiantai Law Firm. “Such a judgment can also be seen as an expression of the court’s insistence on the principle of authorization before use in the absence of a system for the use of orphan works.” 

She adds: “I think orphan works can be used in a limited way. Orphan works are in an inactive state all year-’round. There is no market transaction and the social value cannot be realized. This is not in line with the legislative purpose of China’s copyright law which is to encourage creation and dissemination. The purpose of copyright law legislation is not to restrict the public’s sharing of culture, but to promote more potential authors to create new culture for the purpose of dissemination. The holder of work resources may not be the person who has the ability to disseminate the work. The rights of orphan works are forgotten by the holders and are in a state of neglect to exercise. The purpose of legislation is not only the need to protect the rights actively exercised from being infringed, but also needs to urge the holders to exercise the rights that have not yet been exercised, and pay attention to the interests of communicators.”  

“Only when different parties in the market cooperate actively can it achieve the purpose of spreading the work from the copyright owner to the public,” she says. “It is necessary for the copyright law to introduce a system that can not only realize the use of orphan works, but also fully safeguard the interests of the copyright holder of the work.” 

Among the risks and challenges that she perceives in using orphan works is that a previously undiscovered party may suddenly emerge and claim rights, which will deter users.  

“This kind of risk and challenge does not lie in the fact that it will really happen, but that there is a greater risk in the act of investing, developing and utilizing works under the premise of uncertain and unclear state of rights, which will put users in a fear mentality, resulting in potential users not daring to use it,” she says. “It will result in a negative blocking effect, which is not conducive to the dissemination and utilization of knowledge. Thus, it will make it impossible for intellectual property to achieve its value, and will damage the public interest.” 

She adds that to solve this problem, it is necessary to establish a reasonable system for the use of orphan works. “I believe that in light of China’s conditions, we can learn from the practices of the five Nordic countries and adopt a copyright extended collective management model,” she says. “In the Nordics, if the collective management organization (the CMO) is ‘authorized to administer a certain number of rights holders and the organization is sufficiently representative in a particular field, then such CMO may be extended by law to the rights holders who have not entrusted the organization with the management of their rights,’ according to which the CMO may authorize the use of orphan works to the public. Although the copyright collective management system is not perfect in China, the advantage of China’s CMO is that it has a monopoly position. The copyright law stipulates that for the right management of the same kind of work, only one copyright CMO is allowed to be established. There are five CMOs in China, respectively managing photographic pictures, written works, musical works, audio and video recordings and film works. The national copyright administrative authority (the NCAC) is the competent department of the CMOs. As a result, CMOs can better connect with the administration to manage orphan works.” 

Indonesia and the state of copyright 

Meanwhile, according to Indonesian copyright law, when the creator of a work is unknown, and the work has not been published – a manuscript that has never been made in a form of a book and launched, for example – then the copyright of the work will be held by the state for the benefit of the creator or owner. If the work of the unknown creator has been published or listed as only an alias or pseudonym of the creator, the copyright to the work will be held by the party who makes the publication for the interest of the creator. Further, if the work has been published but both the creator and party who published it are unknown, the copyright will be held by the state for the interest of the creator or owner. The aforementioned interest of the copyright’s owner or holder by the state is executed by the Ministry of Law and Human Rights. 

“However, there is no further technical regulation on how the State will hold the copyrights for the interest of the creator or holder, or how the procedure to ask the permission to the State to use a work which the copyrights owner is unknown,” says Fortuna Alvariza, an advocate and IP counsel at FAIP Advocates & IP Counsels In Jakarta. “If the work is a song, or some part of a song, the party may communicate with the National Collective Management Agency (LMKN) for the royalty that must be paid to the unknown creator or copyrights holder. The LMKN will keep the payment to the unknown song composer or copyright holder within two years. After two years, the payment will be kept in the reserve of the LMKN.” 

She adds: “However, for other works, there is no further regulation concerning the procedure on how to use the work if we do not know who the owner of the work is or who the copyrights holder of the work. Due to loopholes in the implementing regulation and technical procedure, based on legal practice in Indonesia, the party who would like to use a work for commercial purposes may publish their intention in a public notice in nationwide journals and newspapers and other means of media publication, and calling the composer and/or copyrights owner of the work to contact them. This public notice is usually announced twice in order to make sure that the announcement is widely spread in the territory. If within 14 days after the last announcement, no one has appeared to claim ownership of the work, the work can be used. It is recommended to put a note with the message to the creator or copyrights owner to contact them if they would like to claim their ownership and royalty from the use of the work. This procedure has been practiced by some parties who would like to use a work with obscure copyrights.” 

“The practice of such public notice is allowed under various regulations in Indonesia, especially as a proper standard legal procedure to call the party to appear before the Court to attend legal hearing,” she says. “However, the weakness of this system is that public announcements in nationwide newspapers and journals are very costly.” 

She adds that the use of obscure copyrights may also be considered as a timebomb, since they do not know when or who will suddenly come and claim the works as the truly creator or copyrights holder, and whether they will take legal action on the commercial use by the user due to the lack of permission despite of the fact that the creator or copyrights holder was considered as unknown. 

“The public announcement is considered as a proper legal procedure related to the calling or notice on the intention of use of the copyrights,” she says. “However, it is not a guarantee that the creator or copyrights holder, if suddenly appeared, could take legal action against the user, although the user will also have relevant evidence that they are already taking proper tracking action followed by taking legal procedure such as the public announcement in nationwide newspapers and journals, and other means of media.” 

She adds: “Therefore, specific regulation regarding these obscure copyrights needs to be created, among others, regulating that the state or other institution appointed by the state may function for the permission of the use of obscure copyrights works, collect the royalty from the user, and give the royalty to the original creator and/or copyright holder if suddenly they appear and claim their rights with pertinent evidence. The role of the state or the appointed institution as the ‘middle body’ will be useful to avoid potential conflict and abuse of rights from the rights holder and/or original creator, as well as conducting the necessary steps to gain financial benefit for the copyright holder and/or original creator. With this solution, the user will not need to place public announcements in nationwide newspapers and journals, which is very costly.” 

She hopes that one day, Indonesian copyright law will be amended, or, like in Japan, furnished with concrete implementing regulations with more details on the use of such obscure copyrights in order to simplify the exploration of the creation that may potentially bring profit and active production in creative economy industries of the country.  

“I discussed with potential movie producers who would like to reproduce some old movies, but it is not easy to track the original creators or the copyrights holder as there are possibly multiple parties who may involve without knowing who actually the most relevant party to deal with,” she says. “On the other side, it is too risky to use the obscure copyrights work if there is no strong legal standing that will protect them to create and reproduce such old movies.” 

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