January 4, 2003  ·  Lessig

The Nikkei is reporting today that the government will propose a law to “enhance copyright holder protection.” You can’t read the story without buying a trial subscription (aka, that’s bad enough). But worse is the substance of what the Nikkei reports. The story reports what has been reported often before: That the legislation will increase copyright terms for movies and games from 50 to 70 years (again invoking the bogus harmonization argument). But the most amazing proposed change is this:

“Plaintiffs in lawsuits defending their copyrights often have difficulty submitting evidence that offenders have infringed upon their rights. So the government aims to shift the burden of proof to the defendants, requiring them to prove that they have produced and marketed their products without violating the plaintiffs’ rights.”

That’s a quote from the story, and as the story has a bunch of factual mistakes in it, I can’t be sure it is accurate. But if true, it means that in Japan, you’re guilty until proven innocent.

I’ll be reviewing the draft law as soon as I can, and reporting more. But the bottom line is the same: IP extremism continues unabated. There’s so much to praise in this amazing country. It is sad to see them following the extremists.

  • Alex

    I read somewhere that in Japan 90% of prosecutions result in a guilty verdict. No idea if it’s true (I think it was criminal prosecutions, though).

  • ToastyKen

    I’ve heard that.. and I’ve also heard that it’s because they don’t prosecute you at all unless they’re already pretty sure about it, so that 90% figure needs context.

  • Nobuo Sakiyama

    Similar article of Nikkei in Japanese Language does not need a subscription.

  • Dan

    I just read the original article in Japanese and it does say that it will be incumbent upon the defendant to show that product was made in accordance to copyright law. It also mentions that the government believes that lengthening the period to 70 years will have the effect of improving the competitiveness of Japanese software producers – though I fail to see how such a change will do so.

  • Ichiro Nakayama

    As you mentioned, we do not know exactly how Copyright Law is revised before the Government submits the draft bill to the Diet. However, the Government Council�s report in last December (available only in Japanese) gives us some clues to what it will look like. The report said that Copyright Law should introduce the same amendment as that Patent Law adopted in 2000. Article 104bis, added to Patent Law, provides as follows.

    � In a litigation directed to the infringement of a patent right or exclusive license, where denying the material allegation made by a patentee or an exclusive licensee to the effect that an act of infringement is committed with reference to an article or process, the other party shall clarify his relevant act in concrete manner. However, this provision shall not apply when the other party has an adequate reason for preventing him from disclosing the same.�

    As you can see, this provision does not shift entire burdens of proof to the defendants. Right holders still bear the initial burdens of proof. According to the Commentary to the amended Patent Law (also available only in Japanese), right holders may meet their burdens by specifying an article or process to the extent, (1) that such an article or process may be reasonably distinguishable from other articles or process, and (2) that one can compare elements of both patented invention and the alleged article or process so as to determine the infringement issue. Thereafter, the burdens would be shifted to the denying defendants. Moreover, the expected amendment will basically cover civil procedure, not criminal procedure. As far as civil procedure is concerned, you may also bear in mind that Japanese civil procedure system has no discovery process that the US has. Consequently, I do not think that it would be fair to say that the expected amendment means that �you�re guilty until proven innocent.� Nonetheless, you can still oppose the amendment, arguing that it may �enhance the copyright holder protection� more than under the current law. However, it may not be so extreme as you thought initially.

    On the other hand, the expected copyright term extension is worth noting because the extension may be applicable only to movies (including games). Harmonization argument seems to have been invoked, but if it is the case, it is hard to explain why other works will not be entitled to enjoy the term extension. It seems to me that the motive lying behind the harmonization argument may be to further increase international competitiveness of some, not all, of movies such as animation and games that are relatively competitive today. Again, it may be familiar to you as is the argument that Hollywood is an important exporting industry. However, one big difference is that, unlike in the US, the Japanese Constitution has no provision corresponding to �Copyright Clause� in the US Constitution. So once the draft bill is passed through the Diet, it is highly unlikely to challenge its constitutionality later. Thus, people in Japan really have to think about it right now. I am in favor of Judge Posner�s suggestion to consider term renewal system instead of automatic term extension. Ironically, we may have to reevaluate pre-1976 US copyright system as one of models in 21st Century.

  • http://japanology.arts.kuleuven.ac.be/andreas/research_snapshot.html Andreas Bovens

    There is a small English article at Asahi.com about the expected copyright term extension.
    “Films to be protected for longer” (16-12-2002)

  • http://japanology.arts.kuleuven.ac.be/andreas/research_snapshot.html Andreas Bovens

    More about rising IP extremism in Japan in the Daily Yomiuri of 17-01: “Govt eyeing extension of copyright on movies” (http://www.yomiuri.co.jp/newse/20030117wo16.htm)
    And yes, again the same fake argument: “The duration of authors’ copyrights for movies and animation will be extended from the current 50 years to 70 years after initial publication (…) The revised law is aimed at boosting the global competitiveness of multimedia products.”

  • http://www.aboutmen.it/ Christian Muraglia

    Unfortunately, it is a true story: extremism is not falling, and with him grow extremists. Bad situation.

    Kind Regards