In major Japanese media as well as media outside of Japan, there have been ongoing reports that an agreement will soon be reached regarding intellectual property provisions proposed under the TTP (Trans-Pacific Partnership). Said reports state that the Japanese government intends to make concessions on the very provisions this Forum has voiced concerns as being unsuitable for the state of affairs in Japanese society, such as considerable extension of copyright terms and making copyright infringement prosecutable without right-holders’ criminal accusations. At the same time, there are some provisions with serious ramifications, such as introduction of statutory damages, for which we can learn nothing as to the direction they are taking.
In order to protect access to the rich culture and knowledge in Japan’s possession, this Forum came to the conclusion that now is the most vital time for it to release a draft of its Urgent Appeal on TPP intellectual property provisions and issue a wide call for the opinions and support of related organizations. This Forum did so on February 24, 2015.
In Japan, the Appeal has been tweeted nearly 3,000 times, and the Senior Vice-Minister of the Cabinet Office publicly promised to take appropriate steps to deal with the issue. The matter has also been widely covered by the NHK national public broadcasting network and nationwide newspapers. Furthermore, an associated press conference held on March 13 was streamed live on the Internet, attracting more than 16,000 viewers. As of March 12, the Appeal has garnered the support of many organizations and individuals. We thank them for their support.
Going forward, this Forum will continue to solicit support for its Appeal. Names of supporters will be published in subsequent releases.
Please submit any inquiries to: contact@thinktppip.jp.
* For the substance of the intellectual property provisions of TPP, as well as their historical background and future prospects, please refer to this article by the Forum (http://thinktppip.jp/?page_id=487) as well as the following column by Kensaku Fukui, attorney-at-law (Japanese only).
http://internet.watch.impress.co.jp/docs/special/fukui/20150213_688136.html
* Note that this Appeal is not taking a position either for or against TPP itself. Footnotes in the Draft Appeal are going to be removed at the time of the official release.
Please show your support for the Urgent Appeal on TPP Copyright Provision.
Added on March 26, 2015:
We’ve released the fixed version of the Appeal (that was submitted to Yasutoshi Nishimura Senior Vice Minister of Cabinet Office on March 13th, 2015). Please refer to the below URL.
http://thinktppip.jp/?page_id=713&lang=en
Form to Support the Urgent Appeal
* Individuals and organizations who have already contacted this email
address (contact@thinktppip.jp) to voice their support need not do so
again using the form.
>> For individuals
>> For organizations
[Draft of the Urgent Appeal]
Draft Urgent Appeal on TPP Copyright Provision
There have been reports that among negotiating parties of the TPP (Trans-Pacific Partnership), the biggest bone of contention has been the provisions on intellectual property rights, such as copyright. The leaked U.S. proposal[1] indicates there might be provisions that could severely hinder the development of information society, and many groups and experts, both domestic and international, have been expressing their concerns on this issue[2].
[1] http://tppinfo.org/resources/leaked-texts-country-info/
[2] To point some examples:
An opinion from Nippon Hoso Kyokai (Japan Broadcasting Corporation) http://www.cas.go.jp/jp/tpp/pdf/dantaiiken/115.pdf,
An opinion from Japan Federation of Bar Associations http://www.cas.go.jp/jp/tpp/pdf/dantaiiken/112.pdf,
An opinion from Japan Patent Attorneys Association http://www.cas.go.jp/jp/tpp/pdf/dantaiiken/113.pdf,
An appeal from Japan Playwrights Association and others http://www.jpwa.org/main/statement/appeal20130717,
An opinion from Japan Photographic Copyright Association http://www.cas.go.jp/jp/tpp/pdf/dantaiiken4/10.pdf,
An opinion from the Association of Copyright for Computer Software http://www.cas.go.jp/jp/tpp/pdf/dantaiiken/007.pdf,
An opinion from Japan Association of New Economy http://www.cas.go.jp/jp/tpp/pdf/dantaiiken6/02.pdf,
An open letter to President Obama and others from U.S. intellectual property law academics and scholars http://thinktppip.jp/?p=246 (original: http://infojustice.org/wp-content/uploads/2013/11/Law-Professors-TPP-11142013.pdf),
Letter on TPP Copyright Term Extension Proposals http://thinktppip.jp/?p=383 (original: https://www.eff.org/document/letter-tpp-copyright-term-extension-proposals),
A letter asking for transparency at the last stage of TPP negotiation, from notable NGOs and others http://thinktppip.jp/?p=476 (original: https://www.eff.org/files/2014/12/10/tpp_transparencyletter_12-2014-fnl.pdf), and
Proposal from this Forum http://thinktppip.jp/?p=1.
TPP has long been criticized for its secretive nature, and the secrecy surrounding it has only worsened recently, at this phase of the negotiation which is said to be near the end stakeholder briefing sessions held by the government hardly go beyond explanations that they cannot give any detailed explanations [3]. Meanwhile, notable domestic media has reported many times that Japanese officials would make concessions to U.S. demands on such issues as “extension of copyright protection terms by a great length,” and “making copyright infringements prosecutable without the rightsholder’s criminal accusation.”[4]
[3] http://jp.reuters.com/article/businessNews/idJPKBN0LK0L120150216
[4] For example, http://www.nikkei.com/article/DGXLASDF02H03_S5A200C1EAF000/
We are deeply concerned about this situation in which important decisions for our nation’s culture and society are being made behind closed doors, and that people will only be shown a final text when it is virtually impossible to amend due to the bundled nature of the proposal spanning the 21 areas.
It is generally accepted that ill-conceived copyright term extension dramatically increases the number of “orphan works” copyright-protected works for which rightsholders are positively indeterminate or not contactable. Orphan works are a serious impediment to digitization, and because of this, the possibility of a shortened term has been seriously discussed even in the U.S. [5]. Respected empirical research have also demonstrated that making the term extremely long does not even bring any meaningful revenue to most of the author’s heirs, while increasing unusable works due to the difficulty of rights clearance, and raising the complication for new creation based on old works. In the Japanese context, the term extension will also result in the fixation or even increase in the trade deficit of copyright, hence the criticism that this is contrary to the idea of founding our nation on intellectual properties.
[5] http://www.kottolaw.com/column/000527.html
[6] See, for example, 田中辰雄・林紘一郎編『著作権保護期間 －延長は文化を振興するか？』（勁草書房）, http://thinkcopyright.org/tanji-book.pdf
[7] See, for example, http://internet.watch.impress.co.jp/docs/special/fukui/20130618_603718.html
Making copyright violation prosecutable and punishable without the victim’s criminal accusation bears the risk of chilling the tolerated use, the kind of use that is, strictly speaking, illegal, but is overlooked unless substantial harm is caused to the rightsholders. This means police and prosecutors, not rightsholders, will gain procedural initiative, therefore increasing the possibility of third-party accusation leading to enforcement actions and prosecution on such non-malicious uses. It will have strong chilling effects on many areas of creativity such as parody and other derivative works that underpin the richness of Cool Japan, or various new Internet businesses, research and development within corporations, practices in delivery of educational and welfare services, digital archives, republishing of out-of-print books, screening of revived films just to name a few.
[8] http://heinonline.org/HOL/LandingPage?handle=hein.journals/cjla31&div=28&id=&page= and others
[9] For examples, http://kenakamatsu.tumblr.com/post/44592778197/tpp
and http://www.jpwa.org/main/genronhyogen01
Additionally, there may be a provision to introduce statutory damages, known as a major cause behind increases in the number of copyright lawsuits and damages awarded, and has led to high litigation costs in the U.S. Copyright trolls file some of these lawsuits against corporations and individuals, where the trolls demand large amounts of damages from their victims. However, since the negotiation process is sealed under such secrecy, we are unable to know how these and other issues are discussed.
Many of these provisions were discussed closely in the past in Japan, and were not ultimately introduced because of their highly controversial nature. Japan does not have a provision for general exceptions like fair use, which is said to be the enabler for businesses, archives, and parody works in the U.S. Its business ecosystem is still quite different from the U.S., which can be characterized as lawyer-driven, with lawsuit-based resolution of disputes. Half-cooked introduction of the U.S.-style rules may end up draining energy from Japan and in a disastrous confusion.
[10] See, for example, http://www.jpo.go.jp/shiryou/toushin/chousa/pdf/zaisanken/2013_12.pdf http://www.bunka.go.jp/chosakuken/singikai/hogo/07/pdf/shiryo_02.pdf
http://www.nichibenren.or.jp/library/ja/opinion/report/data/070209.pdf
http://www.mext.go.jp/b_menu/shingi/bunka/gijiroku/013/07071010/003.htm
[11] For example, the number of attorneys in the U.S. exceeds 1250 thousands, whereas it is above 33thousands.(both figures are for 2013). Number of attorneys per capita in Japan is only one fifteenth of the U.S. Number of patent lawsuits is 5,189 in the U.S., and 187 in Japan for 2012. See, for example, http://www.jpo.go.jp/shiryou/toushin/chousa/pdf/zaisanken/2013_12.pdf
Also we should note that treaties have priority over domestic laws. Not even the Diet can change the law once such provisions are mandated as a part of multilateral, multi-sector trade agreement—even if they would like to revisit the issue in light of the social reality after several years. If we are placed under such constraints in the domain of information rules, which are exposed to rapid changes, there is a great risk of killing competitiveness and cultural richness of our country. This goes against Intellectual Property Strategic Program from the Cabinet, and Proposal from the Research Committee on Intellectual Properties Strategy from Liberal Democratic Party, creating a huge negative burden to future generations.
[12] 知的財産推進計画2014 http://www.kantei.go.jp/jp/singi/titeki2/kettei/chizaikeikaku2014.pdf、自民党知的財産戦略調査会 コンテンツ小委員会７の提言 https://www.jimin.jp/news/policy/pdf/pdf178_1.pdf
The most important part of international negotiations is its last phase, when the likely results become seemingly clear. In order not to waste government efforts due to the chaos arising at the time of Dietary approval, we now strongly urge that the intellectual property provisions where participating countries have conflicting interests be removed from the final proposal—where only the most uncontroversial areas such as certain anti-piracy measures be left—and sufficient disclosure of information be made at a stage when the agreement can still accept amendments to its text.
—
Japan Forum for the Intellectual Property Aspects and Transparency of TPP
[ Creative Commons Japan http://creativecommons.jp/
thinkC (Forum for Copyright Term Extension) http://thinkcopyright.org
MIAU (Movements for the Internet Active Users) http://miau.jp/]