Joi Ito's conversation with the living web.

I have a fair use question that maybe someone can answer for me. NHK taped and broadcasted the Blueprint for Japan 2020 panel in Davos. I am one of the speakers. I taped the broadcast and would like to put it on my web page. There are maybe three types of content mixed together. My talking, other people talking, translation into Japanese and some visuals. I guess, strictly speaking, they own the copyright, but what would constitute fair use? In text, I can see quoting it, but how do you quote video?

Also, NHK is a public broadcast company which we have to pay for like a tax. I wonder whether I can try to push them to make stuff like this public domain...

Another totally separate note, they didn't pay me for the panel. I had to pay to go to Davos. I didn't sign any waiver or anything either. What rights do THEY have to broadcast it? Maybe I signed something without noticing it... hmm...


Thanks Chey, that was useful. This passage from UofM was the most relevant:

Video tape copies of free broadcast material (not cable) can be used only under limited circumstances. They can be shown once for face-to-face instruction and once for instructional reinforcement within ten school days of the taping.
This is probably now law, but their policy and this is US, not Japan, but this seems to make sense. So... What would it mean to put it on my web page? If everyone only looks at it once? What is the school-day equivalent for blogs. ;-)

The other section, which is the definition I see everywhere is:

commercial versus non-profit/ educational status
the nature of the work
the use of short passages versus long passages
the effect on the market value of the work if used or excerpted without a license
The last point about market value is supposed to be the most important. I can't see my posting it lower its market value. So it's 18 minutes out of a 1hr show... I guess that's a bit long. Arrgh.
Being unaware of copyright law is never justification for breaking that law.
Well, damn it. It's hard. ;-p

This matter would most likely be governed by Japanese law, seeing as you:

- are Japanese

- are in Japan

- are copying a Japanese television program.

As I understand it, the concept of 'fair use' does not exist in Japanese law. (It does not exist in most European states as far as I know either, certainly not in Ireland.)

Repeat!: Do not depend on the doctrine of fair use outside the US. It is strictly a concept of US law!

There was a case in the Tokyo District Court that tested this in 1990.

A rough summary of the circumstances in which it is permissible to reproduce copyright work in Japan are given on this page.

It is possible that you would be able to get away with this on the grounds of exception (j), "Specific acts for non-profit-making purposes". This is fuzzy stuff, and it would be worth tracking down the original statute to check the specifics.

As for whether WEF was entitled to broadcast what you said, and then hold the rights in it: I think that would be a matter of Swiss law. Prima facie, it would appear that WEF may have been a little remiss in not having you sign a release form and paying a consideration for having you appearing. However, your sole remedy if you object is to have them withdraw the material. However, it's obviously too late for that, and they are unlikely to ever want to broadcast the tape again, unless something really good, or something really unpleasant happens to you. WEF almost certainly holds the rights in the video recordings.

You could ask the WEF for a release to allow you to rebroadcast the material. It is possible that they will refuse to do so unless they have the permission of the other participants.

I take it that NHK added subtitles or other explanatory notes to the piece. NHK would have the rights in the subtitles and you would have to get a release from them too if you wanted to use these.

It is unlikely that NHK would put this material into the public domain. For one thing, they don't own it, it is merely licensed to them, so they don't have the right to place it in the public domain. Additionally, it would put them at a commercial disadvantage, because it would allow private sector competitors to simply pick up their programming and broadcast it later for free. Public service broadcasters are generally very defensive about that sort of thing and I'm sure the Japanese subspecies is no exception to this rule.

I think that in practice, the biggest risk of complaint will be from the other participants. Rightly or wrongly, they might feel their comments are not fairly covered or are being taken out of context when shown on your site.

All in all, I would do the following: put it up, and plead section (j) if anyone objects.

(Sorry to go on so long.)

"Section (j)" is actually article 38 of the Japanese copyright law. This covers a lot of situations, but I'm not sure about this case.

The easier way would probably to rely on article 40 copyright law. The speeches at Davos discussed politics, so the free speech value of having free access to them on a web page trumps financial interests of copyright holders.

Anyway, even if it might be legal to just go ahead under article 40, probably the friendly way to do this would seem to be to at least ask NHK and the "other people talking" if they would want to object. Maybe some of those people don't want their picture on the web for privacy reasons. Maybe NHK has some standard practice for this. So they should have a chance to comment on the question.

I can't read the the original Japanese, so I will have to bow to Karl-Friedrich's view!

However, I would make the following observations:

I wouldn't rely on the political section for the following reason. This exemption probably only relates to the actual performance and the speech delivered. It might not relate to the video footage of the performance or to the superimposed subtitles.

It seems to me very unlikely that the protection on a piece of video owned by a third party (WEF) would be so severely curtailed solely because it happened to contain a political speech. If rights of video producers could be comprimised in this way, it would make the profitable operation of a Japanese newsroom very difficult indeed, because broadcasters could just steal interview footage from competitors and rebroadcast it without payment of royalties or even acknowledgement.

It also depends on the meaning of 'political' in a Japanese context. In some countries and contexts, "political" means 'relating to party, electoral or parliamentary politics'. In others, it covers just about any sort of statement of opinion.

Like 'Fair use', 'Free speech' is a fairly American concept. We don't have the same strong protection of freedom of expression in Europe as there is in the US, for example.

I suspect that for cultural reasons, free speech is not a core right in Japanese law in the way it is in US law. This report by the JCLU seems to bear me out to some extent. However, I can see that this is a matter that is debatable and I am certainly open to correction.

not TV but
It is announcement
so that he may stop direct RISO to a report to a federal administrator, since Mr. Shigeru Ito of Sankei Newspapers is literary piracy.

Perhaps the easiest way would be to get NHK to provide you a link to that video (streaming like your Glocom interview)
I met with the Dir. of Multimedia Dev. Dept. at NHK just before xmas, and would send his contact info. if you like.. ;-)

Thanks for the offer Lawrence. I know the NHK guys and broadcasting on the Net is a bit touchy for them and I doubt they have it available. Although I dropped out, I still use the University of Chicago Manual of Style and even though I am in Japan, I will follow their advice:

The right of fair use is a valuable one to scholarship, and it should not be allowed to decay through the failure of scholars to employ it boldly. Furthermore, excessive caution can be dangerous if the copyright owner proves uncooperative. Far from establishing good faith and protecting the author from suit or unreasonable demands, a permission request may have just the opposite effect. The act of seeking permission establishes that the author feels permission is needed, and the tacit admission may be damaging to the author's cause.
I edited the thing down to a 4MB clip of the only intelligent thing I said that they used and cut everyone elses comments and put a copyright NHK notice at the beginning. I doubt anyone will come after me for this...

Dead right.

The great thing about the web is that the worst they can really do to you is make you take it down. (Contrast this with print-publishing, where they might be able to make you withdraw the book and/or pay a royalty - both very expensive things to do.)

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