Good Luck, Japan: Government About To Make All Copyright Infringement A Criminal Offense

from the this-should-go-well dept

We often bemoan the sheer volume of copyright infringement lawsuits that occur here in America. With an overly protectionist mentality coupled with a culture of ownership, the civil courts are frankly bursting with these lawsuits when there are so, so many more efficient ways we could do things. But we can at least take some comfort in the fact that in America copyright infringement is largely a civil matter, with criminal copyright infractions being relegated to true commercial uses of infringing activities, or those over a certain dollar amount. This saves an insane amount of undue headache for our criminal justice system.

But not every country does it this way. In Japan, for instance, copyright law has long been such that any copyright infringement having to do with music and movies has been the subject to potential criminal prosecution. This has already resulted in citizens being hauled into court by the government under potential sentences of two years in prison for the downloading of a single movie or music file. That outlandish disparity in crime and punishment has resulted in call outs from groups like the EFF. And, yet, despite such clapback, the Japanese government is currently recommending that this exact same criminalization and punishment regime be rolled out to every instance of copyright infringement, rather than relating only to music and movies.

Last year it was reported that an advisory panel for the Cultural Affairs Agency was considering the possibility of rendering the downloading of a broader range of content as a criminal offense, roughly in line with laws passed in 2012 outlawing various forms of file-sharing. This week, those plans took a significant step forward.

According to local sources, a government panel adopted the new policy on Wednesday, recommending to the Cultural Affairs Agency that current anti-downloading legislation should be expanded to cover all copyrighted content. The Agency is now expected to submit a bill to amend the Copyright Act.

While the exact punishment guidelines are currently being debated as I write this, that two-year sentence guideline from the 2012 law is very much being looked at as the standard. To roll this out to copyright infringement writ large is flatly crazy. As we and many others have stated over and over again, many people casually engage in copyright infringement in their daily lives without even realizing it. To subject such behavior to multi-year prison sentences is both pernicious and misguided. If criminal cases are pursued uniformly for copyright infringement, it's going to put nothing short of a stranglehold on the Japanese courts.

It's also worth noting that all of this is being done in a way vague enough that it's almost certain to cause confusion and chaos.

Additionally, these sentences would only be handed down in the event that victims of infringement file criminal complaints. However, the threshold for a criminal complaint is unclear and could cause issues for the legal system if there are large numbers of referrals.

Now, Japanese copyright law has steadily become more restrictive over time. But this move, if enacted, would represent a giant leap forward into a real age of restriction and undue punishment for the Japanese public. So, good luck to my Japanese friends. I can't wait to see the fallout.

Filed Under: copyright, criminal copyright, japan

New Japanese Law Lets Government Hack IOT Devices, Warn Owners They're Vulnerable

from the internet-of-broken-things dept

By now we've established pretty clearly that the well-hyped "internet of things" sector couldn't actually care less about security or privacy. Companies are in such a rush to cash in on our collective thirst for internet connected tea kettles and not-so-smart televisions, they don't much care if your new gadget was easily hacked or integrated into a DDoS botnet. And by the time security and privacy flaws have been discovered, companies and consumers alike are off to hyperventilate about the next must-have gadget, leaving untold millions of devices in the wild as new potential points of entry into home and business networks.

While most countries hem and haw without doing much of anything about the problem, Japan's government this week proposed a unique legislative solution. A new Japanese law (pdf) passed this week authorizes the Japanese government to actually hack into poorly-secured internet of things devices as part of the country's attempt to conduct a survey measuring the real scale of the problem:

"The survey will be carried out by employees of the National Institute of Information and Communications Technology (NICT) under the supervision of the Ministry of Internal Affairs and Communications. NICT employees will be allowed to use default passwords and password dictionaries to attempt to log into Japanese consumers' IoT devices.

Devices shipped with default username and passwords that users are too lazy (or technically incompetent) to change continue to be a huge problem in IOT devices and routers alike. Once the Japanese government has confirmed the vulnerability, it intends to send notices to impacted users in a bid to try and scare them into actually securing the devices. A Ministry of Internal Affairs and Communications report (pdf) was quick to note that attacks targeting poorly-secured IOT devices comprised two-thirds of all cyberattacks in 2016.

Obviously letting the government hack into consumer and business devices isn't being welcomed warmly in Japan, where many understandably don't trust government with such a task. But it's worth noting these kinds of "solutions" are only emerging in the wake of years of apathy contributing to a global crisis. A crisis many experts say will, inevitably, result in potential mass casualties as essential infrastructure becomes increasingly vulnerable. Collectively we've largely yawned at the problem since much of its impact is what security expert Bruce Schneier calls "invisible pollution:

"The market can't fix this because neither the buyer nor the seller cares. The owners of the webcams and DVRs used in the denial-of-service attacks don't care. Their devices were cheap to buy, they still work, and they don't know any of the victims of the attacks. The sellers of those devices don't care: They're now selling newer and better models, and the original buyers only cared about price and features. There is no market solution, because the insecurity is what economists call an externality: It's an effect of the purchasing decision that affects other people. Think of it kind of like invisible pollution."

While other solutions for this problem are being explored (like mandating the inclusion of privacy and security issues in product reviews), they've been few and far between in actually materializing, since giving a damn will actually cost money. Experts like Schneier have long argued that given this market and consumer failure, government needs to play some role in coordinating some rules of the road for flimsy IOT security. Perhaps letting government itself hack into your poorly secured Barbie is a bridge too far (who'd follow up to confirm government didn't abuse the privilege?). But if that's the case, what's the solution?

Filed Under: hacking, iot, japan, nict, proactive hacking, security

EU And Japan Agree To Free Data Flows, Just As Tottering Privacy Shield Framework Threatens Transatlantic Transfers

from the cooperation-not-confrontation dept

The EU's strong data protection laws affect not only how personal data is handled within the European Union, but also where it can flow to. Under the GDPR, just as was the case with the preceding EU data protection directive, the personal data of EU citizens can only be sent to countries whose privacy laws meet the standard of "essential equivalence". That is, there may be differences in detail, but the overall effect has to be similar to the GDPR, something established as part of what is called an "adequacy decision". Just such an adequacy ruling by the European Commission has been agreed in favor of Japan:

This mutual adequacy arrangement will create the world's largest area of safe transfers of data based on a high level of protection for personal data. Europeans will benefit from strong protection of their personal data in line with EU privacy standards when their data is transferred to Japan. This arrangement will also complement the EU-Japan Economic Partnership Agreement, European companies will benefit from uninhibited flow of data with this key commercial partner, as well as from privileged access to the 127 million Japanese consumers. With this agreement, the EU and Japan affirm that, in the digital era, promoting high privacy standards and facilitating international trade go hand in hand. Under the GDPR, an adequacy decision is the most straightforward way to ensure secure and stable data flows.

Before the European Commission formally adopts the latest adequacy decision, Japan has agreed to tighten up certain aspects of its data protection laws by implementing the following:

A set of rules providing individuals in the EU whose personal data are transferred to Japan, with additional safeguards that will bridge several differences between the two data protection systems. These additional safeguards will strengthen, for example, the protection of sensitive data, the conditions under which EU data can be further transferred from Japan to another third country, the exercise of individual rights to access and rectification. These rules will be binding on Japanese companies importing data from the EU and enforceable by the Japanese independent data protection authority (PPC) and courts.

A complaint-handling mechanism to investigate and resolve complaints from Europeans regarding access to their data by Japanese public authorities. This new mechanism will be administered and supervised by the Japanese independent data protection authority.

It is precisely these areas that are proving so problematic for the data flow agreement between the EU and the US, known as the Privacy Shield framework. As Techdirt has reported, the European Commission is under increasing pressure to suspend Privacy Shield unless the US implements it fully -- something it has failed to do so far, despite repeated EU requests. Granting adequacy to Japan is an effective way to flag up that other major economies don't have any problems with the GDPR, and that the EU can turn its attention elsewhere if the US refuses to comply with the terms of the Privacy Shield agreement.

The new data deal with Japan still has several hurdles to overcome before it goes into effect. For example, the European Data Protection Board, the EU body in charge of applying the GDPR, must give its view on the adequacy ruling, as must the civil liberties committee of the European Parliament -- the one that has just called for Privacy Shield to be halted. Nonetheless, the European Commission will be keen to adopt the adequacy decision, not least to show that countries are still willing to reduce trade barriers, rather than to impose them, as the US is currently doing.

Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

Filed Under: data flows, eu, japan, privacy, privacy shield, surveillance, us

Japanese Lawyer Sues NTT For Voluntarily Blocking 'Pirate Sites'

from the censoring-is-censoring dept

Well, that didn't take long. Over the past few weeks, we have been discussing yet another attempt to introduce a censorious site-blocking program to combat copyright infringement, this time in Japan. While site-blocking is unfortunately now popular in several countries, Japan's attempt at it is interesting in that the Japanese constitution specifically forbids censorship of this kind save for the need to combat very serious, typically deadly instances. What's not arguable is that Japan's constitution intended to allow for a sweeping site-blocking program to combat general copyright infringement. Despite this, and despite the fact that the Japanese government hasn't bothered to actually put any law in place that would institute site-blocking, at least one ISP decided to get a head start and began blocking access to several websites it determined to be "pirate sites." The Nippon Telegraph and Telephone Corp., or NTT, did this while saying the government should still get on crafting an actual law for its actions, despite the obvious unconstitutional nature of the whole enterprise.

Because of its actions, it will be NTT that will face the first legal challenge to site-blocking rather than the government, with a private citizen, who happens to be a lawyer, suing the ISP for invading his privacy in order to censor his access to the internet.

Lawyer Yuichi Nakazawa has now launched legal action against NTT, demanding that the corporation immediately ends its site-blocking operations. The complaint, filed at the Tokyo District Court, notes that the lawyer uses an Internet connection provided by NTT. Crucially, it also states that in order to block access to the sites in question, NTT would need to spy on customers’ Internet connections to find out if they’re trying to access the banned sites.

The lawyer informs TorrentFreak that the ISP’s decision prompted him into action.

“NTT’s decision was made arbitrarily on the site without any legal basis. No matter how legitimate the objective of copyright infringement is, it is very dangerous,” Nakazawa explains.

Regardless of the specific legal arguments in this suit, it's hard to imagine that NTT wouldn't have seen this coming. Operating without a legal framework to unilaterally censor parts of the internet in a country with a commanding federal legal framework hardened against this very thing was putting the ISPs neck out there, to put it mildly. Why NTT wanted to paint a legal target on its own back rather than waiting for the government and courts to sort this out at the federal level is beyond me. One has to imagine that this lawsuit will be the first of many, if NTT decides to carry on blocking websites. Japanese law is quite clear on the matter, after all.

Breaches of privacy could present a significant problem under Japanese law. The Telecommunications Business Act guarantees privacy of communications and prevents censorship, as does Article 21 of the Constitution.

“The secrecy of communications being handled by a telecommunications carrier shall not be violated,” the Telecommunications Business Act states, adding that “no communications being handled by a telecommunications carrier shall be censored.”

The Constitution is also clear, stating that “no censorship shall be maintained, nor shall the secrecy of any means of communication be violated.”

Now, as TorrentFreak notes, how this specific legal action is adjudicated will likely come down to the technical specifics of how NTT is doing its site-blocking. That and, of course, how Japanese courts interpret that technical implementation.

The question of whether site-blocking does indeed represent an invasion of privacy will probably come down to how the ISP implements it and how that is interpreted by the courts.

A source familiar with the situation told TF that spying on user connections is clearly a problem but the deployment of an outer network firewall rule that simply prevents traffic passing through might be viewed differently.

But what is more clear than anything else is that this lawsuit signals that the Japanese public won't simply allow ISPs to unilaterally censoring their internet access. Whatever the technical details, Japanese law would make any introduction of site-blocking a matter of deft attempts at skirting the purpose of the anti-censorship laws on the books rather than fully complying with them.

And if we've already reached the point that it's clear the government and NTT are trying to game the system rather than following the law, the public backlash is likely to be heavy.

Filed Under: censorship, copyright, free speech, japan, site blocking
Companies: ntt

At Least One Japanese ISP Gets A Jump Start On The Government's Unconstitutional Site-Blocking Plans

from the what's-the-rush dept

You will recall that we recently discussed the odd announcement by the Japanese government that it would seek to start a site-blocking policy to prevent copyright infringement. The announcement itself was odd for several reasons. First and foremost, this exact kind of government censorship is specifically forbidden in Japan's constitution except to "avert present danger", the context for which normally applies to real-life violence, the taking of liberty, or the destruction or taking of property. To be clear, the exception has never been used for anything remotely like this. But that's not all. The announcement was also strange because pretty much everyone agrees that the government is looking to subvert its own constitution to protect the anime and manga industries, which is both almost certainly the most Japan sentence ever written and completely unnecessary given the that the anime and manga industries are both massive and growing. None of that sounds like a "present danger."

And, yet, it seems like at least one Japanese ISP has decided to get a head start on all of this.

The government didn’t have to wait long for a response. The Nippon Telegraph and Telephone Corp. (NTT) announced yesterday that it will begin blocking access to sites that provide unauthorized access to copyrighted content.

“We have taken short-term emergency measures until legal systems on site-blocking are implemented,” NTT in a statement.

NTT Communications Corp., NTT Docomo Inc. and NTT Plala Inc., will block access to three sites previously identified by the government – Mangamura, AniTube! and MioMio which have a particularly large following in Japan. NTT said that it will also restrict access to other sites if requested to do so by the government. The company added that at least in the short-term, it will prevent access to the sites using DNS blocking.

If nothing else did, this sudden move by NTT ought to demonstrate to everyone in Japan just how dangerous these sorts of ham-fisted government attempts at policy are. This sort of bowing to government pressure, especially when that pressure is of an unconstitutional nature, doesn't typically find a home in democratic nations. That's all the more true when we're discussing a form of censorship. It's also more than a little jarring to watch a private sector industry carry out government aims as an "emergency" with the excuse essentially of "legislating democratically takes too long."

And, while we made this point in our original post on this topic, let's reiterate that cracking this censorious door open an inch will lead to the government barging straight through it.

To date, just three sites have been named by the government as particularly problematic but it’s now promising to set up a consultation on a further response. A bill will also be submitted to parliament to target sites that promote links to content hosted elsewhere, an activity which is not illegal under current law.

Read that last bit again and understand what it means: the Japanese government will target websites for censorship that are not breaking Japanese law. If that doesn't terrify Japan's public, then it damn well should.

Meanwhile, other ISPs in the country have taken a slightly more measured approach, stating that they will consult with experts on what to do. That's certainly better than NTT's approach, except that it still falls short of what every ISP ought to be saying: "No, this is against the law."

Filed Under: censorship, copyright, free speech, isps, japan, site blocking
Companies: ntt

Japanese Government Seeks To Circumvent Its Own Constitution To Censor 'Pirate' Sites

from the that's-not-how-constitutions-work dept

With site-blocking regimes now fully in vogue, far too many governments are getting in on this censorious party. In the cases of most governments, there is leeway in the overall legal structure to do this sort of thing, even if it is wholly unadvised and typically comes with disastrous results. But when Japan announced recently that it is considering site-blocking of so-called "pirate sites" in order to help its anime and manga industries, many familiar with Japanese federal law raised an eyebrow.

The country has no specific legislation that allows for site-blocking of any kind, let alone on copyright infringement grounds. In fact, the constitution expressly supports freedom of speech and expressly forbids censorship.

“Freedom of assembly and association as well as speech, press and all other forms of expression are guaranteed,” Article 21 reads. “No censorship shall be maintained, nor shall the secrecy of any means of communication be violated,” the constitution adds.

If you wanted a federal constitutional provision that almost perfectly inoculated against censorious site-blocking over something as relatively mundane as copyright infringement, this would appear to be it. The writers of the Japanese constitution clearly were concerned about government censorship and specifically prohibited it.

This has not stopped the government from trying to dip its toes in these waters, chiefly by pretending that copyright infringement is something that it isn't.

Mainichi reports that the government will argue there are grounds for “averting present danger”, a phrase that’s detailed in Article 37 of Japan’s Penal Code.

“An act unavoidably performed to avert a present danger to the life, body, liberty or property of oneself or any other person is not punishable only when the harmc produced by such act does not exceed the harm to be averted,” the Article (pdf)begins.

It’s fairly clear that this branch of Japanese law was never designed for use against pirate sites. Furthermore, there is also a clause noting that where an act (in this case blocking) causes excessive harm it may lead “to the punishment being reduced or may exculpate the offender in light of the circumstances.”

If Japan indeed goes down this route, it will be a complete mess at best and result in the eroding of its own constitution at worst. To combat copyright infringement. The very notion of this is insane. Creaking open the door for this kind of full site-blocking censorship, a door that will surely be burst through by every major and minor content producer in Japan and abroad, and subverting the nation's constitution in order to support one specific industry within the country that isn't hurting for money, make zero sense. The manga industry in Japan alone is a multi-billion dollar industry and it's growing. Whatever challenges it faces from copyright infringement, it's not existential in nature.

As of now, the government looks to be softening its approach to make this kinda-sorta voluntary by ISPs.

It appears that rather than forcing Internet providers into compliance, the government will ask for their “understanding” on the basis that damage is being done to the anime and manga industries. ISPs reportedly already cooperate to censor child abuse sites so it’s hoped a similar agreement can be reached on piracy.

Initially, the blocking requests will relate to just three as-yet-unnamed platforms, one local and two based outside the country. Of course, this is just the tip of the iceberg and if ISPs agree to block this trio, more demands are sure to follow.

This has been true in virtually every case where site-blocking has been introduced. It starts off as the mere exception before being strong-armed into the rule.

Don't do this, Japan. Don't torch your own constitution over a non-problem.

Filed Under: censorship, constitution, file sharing, free speech, infringement, japan, manga

Psychiatrist Sues A Bunch Of Redditors For Criticizing His Therapy Services

from the a-move-sure-to-silence-future-criticism dept

Update: Redditors are crowdfunding their legal defense via GoFundMe. They are now being represented by Marc Randazza.

For reasons only known to the plaintiff, an American psychiatrist offering unlicensed services in Japan is suing a whole bunch of Redditors for defamation. The underlying reason for this lawsuit is obvious: searches for Dr. Douglas Berger or psychiatrists in Japan tend to return lots of links presumably owned by Dr. Berger, but more prominently, a bunch of warnings from Redditors at Japan-focused subreddits to steer clear of his psychiatric services.

So much is Dr. Berger hated by denizens of Japanese-oriented subreddits that one subreddit has even made an annual tradition of warning Americans in Japan (or looking to relocate there) away from Berger. This post also notes Berger himself has tried to make negative posts disappear from Reddit, sometimes with the assistance of reputation management firms.

It appears none of this has worked. Dr. Berger -- living and working in Japan -- has filed a defamation suit in Florida. This doesn't make much sense, but I assume the court will sort out jurisdiction once the case gets underway. So far, there's nothing more on the docket than Berger's first and second complaint, the latter stripping out Microsoft and Google as defendants to focus solely on Reddit and Redditors. Berger at least focuses his lawsuit on the Doe Redditors, naming Reddit as a party solely for the purpose of obtaining identifying info. As his filing [PDF] states, he makes no assertions of liability as to Reddit.

That being said, there's a lot not to like about this lawsuit. There seems to be plenty of critical opinions listed but very little actual defamation. Some statements could be construed to have crossed that line, but for the most part, we're dealing with statements of opinion which cannot be treated as defamatory, no matter how negative they are.

Here are some of the many, many statements Dr. Berger would like to see sued into nonexistence [with my commentary in brackets]:

[t]he false and defamatory statements about Plaintiff Berger include but are not limited to the following:

that he is a 'fucking maniac' [opinion]
he is a 'piece of shit' [opinion]
'gives patients the creeps' [opinion]
that 'he is not a medical professional' [Depends on the definition. He is not licensed in Japan but is licensed in the States.]
'he was disinterested in patients' [opinion]
'incompetent in actually giving therapy' [opinion -- and a layman's opinion at that]
that he overprescribes drugs [questionable, but still looks like an uninformed opinion, not an assertion of fact]
that he 'was always distracted on the computer while with a patient' [even if an assertion of fact, still not defamatory]
that he said sexist comments to a patient' that he told a female patient she will 'be basically worthless after [she] lost her looks' [this is borderline, but truth is an absolute defense, so if it can be shown that it happened…]
he misdiagnoses patients [borderline]
harasses patients online [this can be likely be proven one way or another if true]
takes advantage of patients [opinion]
scams patients [borderline]
that he is a 'scam artist with a doctorate' [borderline, but closer to opinion than the previous one]
that he is 'incompetent or negligent in both' (referring to [Dr. Douglas Berger's] mental health services) [possibly defamatory]
that he is unstable [opinion]
he bilks clients out of their money for services that do not meet even the most basic professional standards [borderline]
he uses Paypal to avoid paying taxes [leans towards defamatory]
he is 'deeply unprofessional, insulting and derogatory' [opinion]
he is a 'cast-iron racist' [borderline, likely can't be proven or disproven]
that he is a charlatan [opinion]
that another mental health service provider gets a lot of his angry ex-clients [possibly defamatory if false, but would possibly have to prove person knew this wasn't true when it was posted]
that he is pushy [opinion]
that he is manipulative [opinion]
and that he disrespects clients and makes them feel like it is their fault they are depressed or stressed [opinion].

For the most part, we're dealing with opinion. The borderline cases might make the lawsuit a worthwhile pursuit for Berger, but a large number of these statements are going to be tossed as they don't clear the bar for defamation.

And some of this will hinge on whether or not the court decides Berger is a limited-purpose public figure for the purposes of this suit. If so, the bar goes even higher and is likely to give Berger very little return on investment. Berger's contributions to several major publications on the subject of providing psychiatric services in Japan are likely to make him a public figure of sorts, even if only in the small arena of ex-pats providing unlicensed services in a foreign country.

Another problematic aspect of this lawsuit is the amount of information Berger wants Reddit to hand over so he can proceed with his suit.

• Join Date
• Last login
• First Name
• Last Name
• Email Address
• Phone Number
• Email notification address for follow up comments
• Zip Code
• Date of Birth
• Gender
• Location
• Originating IP address for each and every connection by each user to your service, including the initial account establishment
• Remote port number for each user connection
• The date & time for each session
• The time zone used by your log file system
• User agent detail of the user's computing devices for each session
• Any other such information available that includes basic subscriber information and non-content records about the user.

Hopefully Reddit will fight this demand for info, pushing back on the request until the judge narrows the list down to those who have made arguably defamatory statements (and limits the scope of what can be compelled from Reddit). The court should also be hesitant to grant unmasking requests like these prior to weighing the suit's validity. Online anonymity -- especially that related to public commentary on issues of public interest -- should be given as much protection as possible, no matter how badly a plaintiff might want to clean up his search results.

Then there's the question of jurisdiction. The only connection to Florida is the existence of property owned by Dr. Berger. He has no residence there, nor does he provide services in Florida. Reddit -- a non-party for all intents and purposes -- is headquartered in San Francisco. It's not like Berger is dodging an anti-SLAPP law by filing in Florida as opposed to California -- something his legal representation should be aware of. It may be Berger simply had no idea where to file it and picked a place nominally linked to him, rather than for some legal advantage not present in California.

While there may be some actionable statements in the Reddit-Berger dogpile, a majority of the comments are critical opinions. The problem is the suit targets everything Berger doesn't like, rather than just the edge cases where defamation may have occurred. Given his past attempts to silence critical Redditors, this looks like an escalation meant to deter future negative comments, rather than seek retribution for the few times he may have been legally wronged. The problem with this tactic is it so very rarely works. If Berger doesn't like the current state of Reddit, he's going to find it much more unbearable once the backlash begins. Reputation management begins at home -- or rather, at the office. Unless all of these Redditors are lying, Berger's psychiatric offerings seem to have been consistently subpar. Seems like the smarter move would have been providing better service rather than seeking to silence unhappy patients after the fact.

Filed Under: defamation, douglas berger, florida, japan, opinion
Companies: reddit

Japanese Music Collection Society Demands Copyright Fees From Music Schools For Teaching Music

from the getting-schooled dept

A brief review of our past stories about copyright collection societies should paint you a fairly complete picture on how these businesses operate. While they pimp themselves as proxies for content creators to police the known world for unauthorized use of that content, as well as operators working to license the use of that content, instead these companies work as syphons sucking money from both sides. They will be genuinely creative in their attempts to find infringement everywhere, liberally interpreting copyright law and what constitutes requirements for various licenses for things like art and music, while at the same time often being found to feign brain-death when it comes to paying the copyright holders' share for the money they collect.

While the tactics used by collection societies regularly flirt with absurdity, it's not terribly often that they behave in a way that will garner broad disdain. One collection society in Japan, though, has decided to cross that line, unilaterally informing music schools that they must now pay up for daring to teach students how to play music. The schools, it seems, are not taking this lying down, having banded together and planning to sue the collection society.

The music school operators said they planned to file a lawsuit against the Japanese Society for Rights of Authors, Composers and Publishers (JASRAC) with the Tokyo District Court as early as July, a representative told The Japan Times. In February, JASRAC informed several hundred private music school operators it will begin collecting copyright fees for the use of sheet music under its management.

It claims the use of music to teach piano or other instruments infringes on the “right of performance” under Article 22 of the Copyright Law, which stipulates the composer has the exclusive right to perform their work publicly. JASRAC plans to revise its regulations, enabling the organization to collect 2.5 percent of all annual fees charged by the music schools.

You can immediately see what I mean about liberal interpretations of the law. Only in the mind of someone working at a collection group would a private school teaching a student how to play a song constitute a "public performance." For the collection group to suggest that this liberal interpretation entitles it to 2.5% of the gross revenue of a music school is plainly absurd. Japan's exceptions to copyright law do include exceptions for non-profit educational institutions, but these schools appear to be private. Those exception provisions also appear to be more geared to works like educational software than music.

The schools are trying to get the government to fill in this gap.

In response to JASRAC’s move, Yamaha Music Foundation, Kawai Musical Instruments Manufacturing Co. and five other musical school operators initially set up a group advocating for the right to educate using musical works without copyright consent. The group, which now has 350 members, has collected over 10,000 signatures demanding a halt to JASRAC’s plan, which it plans to submit to the culture ministry in July.It remains unclear how many companies will join the lawsuit.

“We want the court to confirm that performances at (music) schools do not need JASRAC’s consent,” said a representative for the group.

For it's part, JASRAC points out that there is no definition of a "public performance" in Japanese copyright law. But that likely doesn't mean that JASRAC can simply interpret what a public performance is any way it likes, including in the teaching of a student. Instead, it seems likely that this dispute will give the Japanese government the impetus to flesh out the law. That will ultimately be a good thing, assuming the government doesn't suddenly lose its mind and decide to pretend that educating students is a public performance of music.

Filed Under: collection societies, copyright, fees, japan, music teachers, teaching
Companies: jasrac

JEFTA: The Latest Massive 'Trade' Deal You've Never Heard Of, Negotiated Behind Closed Doors, With Zero Public Scrutiny

from the when-will-they-ever-learn? dept

As Techdirt has reported, the election of Donald Trump has turned the world of US trade deals upside-down. The US officially pulled out of TPP, although some still hope it might come back in some form. TAFTA/TTIP seems to be on ice, but Trump's choice for US trade representative has just said he is open to resuming negotiations, so it's not clear what might happen there (or with TISA). Against that confusing backdrop, the European Union has been quick to emphasize that it is in favor of trade deals, and is keen to sign as many as possible, presumably hoping to fill the economic and political vacuum left by the US.

One of the negotiations that has been going on in the background is for a major trade agreement between the EU and Japan. It began back in March 2013, but has garnered little attention, as people focused on the more imminent threats of TPP, TTIP, CETA and TISA. That's just changed, thanks in part to a joint statement signed by dozens of civil societies in both the EU and Japan, who write:

the European Union and the Japanese government have been negotiating a deep and comprehensive trade agreement which would cover a third of the world's GDP. The 18th round of negotiations took place in Tokyo in December 2016, and whilst the negotiations might come to a close soon, on the EU side, the mandate given to the negotiators is still not public, and on the Japanese side, secrecy is total.

…

Neither most parliamentarians in EU member states and in Japan, nor European and Japanese civil society organisations and trade unions know the content of the discussions. Nor have they seen draft chapters or been consulted. We condemn this opacity.

The other factor that has suddenly put the spotlight on JEFTA -- the Japan-EU Free Trade Agreement -- is the first leak of some of the negotiating documents, to the Austrian site Attac. Unfortunately, we don't have the actual pages yet, only a summary (original in German). That broadly confirms the information contained in one of the few detailed documents on the EU's official JEFTA site, the 314-page Trade Sustainability Impact Assessment (pdf) prepared for the European Commission in 2016, and largely overlooked.

Although that document is a study, and therefore speculative, it does contain some important information. For example, like most other EU agreements, JEFTA will include a corporate sovereignty chapter, also known as investor-state dispute settlement (ISDS). As Techdirt has described, the EU is trying to establish a new, possibly global court that would hear all such cases, called the Investment Court System. It still only exists on paper, but that didn't stop it being part of the CETA deal. The JEFTA Trade Sustainability Impact Assessment has this to say on the matter:

Whether or not the final outcome is based on the Commission's new Investment Court System (ICS), Japanese business tend to comply with the regulations of the host countries rather engage in investor-state disputes. There is only one known case of Japanese (indirect) involvement in an ISDS case, via a Dutch subsidiary operating in Czech Republic.

That is, Japanese companies prefer to use the national court systems of the countries they have invested in when there is some kind of legal dispute. This is precisely how things should work. And yet the EU is pushing for the inclusion of a completely parallel legal system, only available to investors, that would allow domestic courts to be by-passed and overruled. Here's why it's so keen on the idea:

exclusion of ISDS from the EU-Japan negotiations would be contrary to the emerging norm in comprehensive trade and investment agreements. Japan does not see the inclusion of ISDS as a difficulty.

The inclusion of ISDS is not part of an "emerging norm", but purely a matter of EU policy -- dogma, even: the European Commission wants to make it a part of all trade deals, and so aims to include it in JEFTA, even though Japanese companies are perfectly happy to use national courts. The Sustainability report admits that including an investment chapter will have little effect:

Investment flows (in both directions) are likely to be driven by an improved business environment and better profit margins -- which the investment chapter alone has only a moderate impact on. The economics effects are symmetrical, but moderate.

Even though Japanese companies might not use ISDS, there's a big downside to including it. Following CETA, it is likely that JEFTA will allow investors from other countries -- for example, multinational corporations with significant subsidiaries in Japan -- to use the chapter to make claims against the EU. Including corporate sovereignty unnecessarily, just to set a precedent, could come back to haunt the European Commission in the future if major awards are made as a result. The Sustainability report also touches on the issue of copyright, pointing out:

Another central issue in the EU-Japan FTA negotiations is the lack of protection for the use of sound recordings for public performance in Japan.

The EU will doubtless try to force Japan to rectify that omission. Similarly, the basic term of copyright protection varies between the EU and Japan: 70 years for the former, 50 years for the latter. Again, the European Commission will want to turn the copyright ratchet to extend Japan's term to match the EU's. Finally, it's worth noting that the EU's official study contains an estimate of the benefits that could flow from JEFTA:

The long-term GDP increase for the EU is estimated to +0.76% and +0.29% for Japan under a symmetrical scenario.

It's important to emphasize that this is "long-term": what this means is that the GDP could be higher by the percentages quoted after ten or more years. The average extra GDP growth per year is therefore an even smaller 0.08% and 0.03% for the EU and Japan respectively. That is, like TTIP and TPP, the predicted benefits that will accrue from JEFTA are likely to be very small, while the risks and possible losses in terms of ISDS fines, say, have been ignored completely.

But the worst aspect of JEFTA is not that it's probably not worth the effort, but that the EU and Japan have done everything they can to prevent both the public and even politicians from finding out what a bad deal is being negotiated in their name. After the humiliating defeat of the Anti-Counterfeiting Trade Agreement (ACTA), and the more recent failures of TPP and TTIP, you would have thought that the governments involved would have realized that this kind of secret dealmaking just isn't acceptable any more, but apparently, they haven't. Fortunately, JEFTA is finally out in the open, which means it can begin to be subjected to long-overdue scrutiny and democratic input. What we need now is for the EU to release negotiating texts as it did for TTIP.

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Filed Under: eu, japan, jefta, secrecy, trade agreements