Joi Ito's conversation with the living web.

Yesterday, I gave a presentation about Creative Commons at a study group on copyright of which I am a member. The other members include the founding chairman, Hori-san of one of the largest talent management companies in Japan, Hori Productions, Professor Nakayama, the Tokyo University professor who invited Larry Lessig to Japan and one of the most influential copyright and constitutional law professors in Japan, Professor Iwamura, the former head of research and policy for the Bank of Japan and other professors and lawyers involved in copyright. I really like this study group because everyone is quite open-minded and frank and speaks from first-hand experience in court and law-writing.

Everyone "enjoyed" my presentation and I think everyone thought it was a "cool" idea. Here is some feedback that I got. (If you don't know about creative commons, go look at the web site.)

  • Japan does not have a notion of fair use. Instead of fair use, it is generally prohibited and specifically allowed by specific laws allowing quoting and so on. Generally speaking coypright is getting tougher in Japan.
    • Professor Nakayama gave the example of a tiny logo that showed up in the background of a commercial poster. He argued for something similar to fair use. The judge found the defendant not-guilty only because the image was so small, but didn't concede anything like fair use.
    • Recently a musician lost in the supreme court for a song that sounded very similar to another musician's song. This was the first case where popular music that "sounded like" someone else's was found to be a copyright violation.
  • There was some negative comments about the American use of "fair-use" because courts tended to dodge some clarity in defining copyright by saying, "it probably is something that violates copyright but is OK because of "fair-use".
  • Professor Iwamura asked whether "intent" was important. It seems that most of the cases, at least in Japan, were between people who were emotionally upset by violations rather than for financial reasons. If the emotional element (which is an important part of the derivative works issue) is key, isn't intent important. Professor Iwamura asked, half-jokingly, whether we would make a "unintended copying allowed" in the CC license. I do believe that intent will become more important as amateur photography and movie making becomes more common. Even today, there is a huge chilling effect on movie making because images in the background can cause copyright infringement. In the past there were cases where the Japanese courts ruled that images in backgrounds were OK, but no more. Anything in the background is still a copyright infringement. This will be a huge chilling effect on sharing home movies and home photos. The Japanese law does not allow intent to play any role in defining whether images in the background are an infringement.
  • Hori-san pointed out that many artists would love to have their works distributed freely until they become famous, but would like to take this right back after they can charge for it or after such rights become valuable. We discussed the possibility of moving stuff from the PD (Public Domain) back to ownership. We talked a bit about the founders rights in the US. I think we decided it would be difficult, but something worth considering in the context of versioning and other technical innovations.
  • We talked about MediAgora and other payment/pricing mechanisms. Professor Iwamura talked about the ability and the robustness of markets and the difficulty of markets where pricing was not stable, where the value of goods could suddenly disappear and pointed out some issues with the MediAgora model from on economists point of view, which frankly, I didn't understand. ;-)
  • Mr. Hori did think there were many artists who would be willing to use the Creative Commons license as part of promotion and that in fact, they do a similar kind of licensing for up-and-coming bands, but with a limited term. I explained that unlimited terms are important for derivative works.
  • I asked about the likelihood Japan would be supportive of Creative Commons. Although everyone liked the idea, they said that there are very few copyright related lawsuits in Japan and frankly, there probably wasn't as strong a need in Japan and we might have difficultly convincing people of the need initially.
  • They explained that there was no copyright related lobby in Japan and such lobbying tended to be counter-productive. Most issues were decided either by people like themselves or through new bills proposed by politicians, which was quite rare.
  • I described the "Reclaim the Public Domain" campaign and they all thought it was a "clever idea" but no one volunteered to champion such a bill in Japan.
  • Professor Nakayama felt that the "warranty" issue wasn't really an issue because people will sue who they want to sue and the warranty that you have the rights do not significantly increase the likelihood that you would be sued.


If Professor Iwamura coulld explain his objections here or in the mediAgora discussion board, I'd be happy to hear them, and hopefully clarify things.

One key point is that mediAgora is designed to work in the digital realm alone, as an adjunct to conventional publishing. It is designed for non-rivalrous, non-excludable goods.

The model works less well when the cost of goods is a significant part of the price, as this applies a lot of friction to the 'pay full price for source works' default derivative license.

There's the start of a good discussion list regarding CreativeCommons in Japan (albeit in Japanese) Cc-jp

Archives here:
Cc-jp 保存書庫

cool, joi
any materials available?

I see a few more problems with the concept of a creative commons or any related concept becoming adopted here in Japan.

1) Japan is not a culture of law in the same sense as the USA. Japanese law works on the general idea that if a thing or action is not specifically permitted it is denied. This supports the existance of the huge beurocratic class since specific regulations are needed for any action. A Creative Commons (or even a recognized Public Domain) is anethimatic to this class since such a general class of works is very hard to regulate.

American law generally operates on the opposite principal (copyright/IP being an odd exception) in that if a thing or idea is not denied it is permitted. In this case the Public Domain does not have to be explicitly permitted since it is implied by expiration of legal protection.

2) Japanese copyright law divides works into at least 4 different classes and different protections are given to each one. A Creative Commons could end up with various types of restrictions as well. While this would be a boon to the beaurocrats, it would be a boondoggle to those attempting to determine the actual status of a work.

There may be more too this but I'm too burnt out to think now.

Should Japan begin to think about these concerns as we all move into a global economy under an increasingly standardized intellectual property regime imposed by treaty?

Japan has not been litigeous before, but its citizens may become the target of litigation by foreign rights owners who seek maximum protection of their economic interests.

Further, the technology itself is in the process of design changes that will forever prevent the widespread sharing of work (fair use or otherwise) that is currently tolerated in Japan.

I proposed a "Limited Time CC License" on March 27 on my blog, which reverses the Founders'Copyright idea. That would seem to do what Mr. Hori wants to happen.

I'm a technology journalist that's been covering the whole music/movie Internet pirating issue closely in the US. I'm interested in seeing how active the issue is in Japan.

Please let me know if you can assist me in contacting people in Japan regarding this topic.


Mike Thuresson

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