“To Continue Creating Freely Without Infringing Copyright” Tasuku Mizuno x Sadaaki Kato x Takayuki Fukatsu [Part 4]

We have already learned what copyright is in the first place (Part 1), what specifically constitutes copyright infringement (Part 2), and where the boundaries of moral rights of authors lie (Part 3). In this final installment, together with lawyer Tasuku Mizuno, we will consider the state of copyright in the internet age and what note can do to remain a place where “anyone can start and continue creating.”

*This article is a transcript of a conversation/interview held on January 28, 2019.

Are authors' rights too strong, preventing future creators from growing?

Kato　Based on our discussion so far, I would like to ask a somewhat extreme question. In the age of the internet, is copyright even necessary in the first place? I certainly understand that protecting the rights of creators is important, but in this day and age where technology has advanced, couldn't the rights to copyrighted works be covered within the framework of ownership and property rights, just like ordinary goods?

Mizuno　The current way of thinking about copyright law is to apply rules similar to ownership to intangible information, such as expressions, just as we do with physical objects. However, the nature of objects and information is actually quite different. Copying is easy, and the quality does not degrade when copied. Until now, the informatization of society had not progressed that far, so we managed by applying a way of thinking that treated information like physical objects.

But in a highly informatized society, often referred to as a data-driven society, the idea of letting specific people monopolize information as if it were property often hinders the potential of copyrighted works. Personally, I believe that copyright as a right should be weakened a little to match the highly informatized society.

Fukatsu　So, under current law, the rights of authors and copyright holders are too strong.

Mizuno　Yes. Copyright is a stronger right than other intellectual property rights such as patents. Patents require an application to the Patent Office and payment of fees, and are generally protected for 20 years from the date of filing. On the other hand, copyright does not require an application or payment. Since rights are recognized for 70 years after the author's death, if a work created at age 30 is protected until the author passes away at 80, it will be protected for a long period of about 120 years.

Kato　That is quite a strong vested interest, isn't it?

Mizuno　When considering whether or not to grant copyright, we must determine whether it is worth allowing specific individuals or companies to monopolize rights for such a long period without even requiring registration. If we allow a monopoly, other people generally cannot use that expression. Thinking about it that way, I don't think it should be granted so easily.

Kato　In other words, we must leave room for future creators to freely create new things. For example, in the music industry, a composer who has broken new ground might, in their old age, claim rights against young people, saying, “This is a rip-off of mine.” I think this ends up hindering the creative work of those who follow.

Fukatsu　To take it to the extreme, for example, if I were to write a masterpiece using a program that takes about 520 hours to generate every possible combination of musical notes, could I claim rights to that?

Kato　Exactly. It's a story close to that. When I think about current creators and future creators who haven't been born yet, I feel that the balance of the system is a bit broken.

In the internet age, is copyright hindering the development of culture?

Mizuno　That is because current copyright law does not account for the internet. Since the spread of the internet, there is a view that copyright law, in particular, is hindering innovation and the expansion of economic market size.

Fukatsu　Considering the historical flow, the publishing and television industries, which have restricted free use through copyright, are in a downward trend and are being replaced by more lenient internet novels and TikTok.

Mizuno　Furthermore, the market size of the food and fashion industries is much larger than that of content industries like music and film, but the latter is said to be an industry where copyright restrictions are traditionally stronger than the former. There are research results suggesting that this is because the regulation of copyright itself has narrowed the expansion of that market size. This is discussed in detail in the book “The Knockoff Economy”.The Knockoff Economy”.

Kato　I see. It is common for protective measures that safeguard vested interests to end up limiting market expansion, but this also applies to the content industry.

Mizuno　The music industry collapsed early on due to Napster* and BitTorrent*, and recently it has been growing through streaming, as well as revenue from live performances and merchandise. For manga and other content, the question is what kind of mechanisms can be put in place.

* A long-established music streaming service. Founded in 1999.
* A communication protocol for accelerating file sharing, as well as file-sharing software.

Kato　To avoid restricting the freedom of creators, we should liberate copyright more.

Mizuno　Yes. Copyright is positioned as an exception to freedom of expression in the sense that it grants exclusive rights regarding specific expressions and prevents others from using them. While strengthening copyright may be convenient for existing rights holders, it becomes a major constraint on freedom of expression for future creators who will be expressing themselves. I believe that strengthening copyright any further risks running counter to freedom of expression.

While it is true that we cannot ignore the historical context, I believe we should think in the direction of weakening copyright. For example, through a mechanism like a “right to claim remuneration,” where copying is basically free, and in exchange, if revenue is generated from that copying or modification, it is returned in the form of money.

Kato　I see. That sounds good.

Mizuno　It is said that copyright law has an environment where the opinions of individual creators are less reflected than in other legal fields. I think the fact that there are almost no industry organizations for internet users also has an influence. Copyright has become a rule that supports the information infrastructure for non-professional creators like those writing on note and for the general public. Shouldn't internet users and the general public take a bit more interest in copyright and improve their literacy?

Kato　While protecting the rights of creators who are active now, how do we create a good environment where new future creators can grow? We want to think about what we can do to expand creativity while balancing protection and freedom.

What should a provider do when accused of copyright infringement?

Fukatsu　Could you tell us a bit more specifically? Under current copyright law, what can we as a provider do to protect the rights of creators and freedom of expression?

Kato　I would like to hear that.

Fukatsu　For example, if an article using a panel from a famous manga is posted on note, and a third-party user says, “This is a violation of copyright law, so please delete it,” how should we as a provider behave?

Mizuno　Legally speaking, this is about the Provider Liability Limitation Act, commonly known as the “Provider Liability Act.” The Provider Liability Limitation Act is a law for adjusting the interests of three parties: information senders on the internet, rights holders such as copyright holders, and service operators/businesses.

Regarding your question about when a request for copyright infringement is made by a third party who is not the rights holder, the entity that can exercise the right of copyright is ultimately the rights holder or their agent, and it is considered that there is no need to respond to deletion requests from other third parties. In practice, when a deletion request is made to a provider, we often ask for evidence that would allow an average person to judge that the requester holds the copyright, and if a request comes from another third party, we often guide them to have the rights holder make the request directly.

Fukatsu　Then, do we not have to respond to hearsay from that third party, such as “I reported it to the publisher and they said to delete it”?

Mizuno　Yes, that is correct. In the first place, the sender/poster might have properly obtained permission. If you delete it arbitrarily in that case, there is a risk that the act of the note operator side could conversely constitute an illegal act as a provider that deleted it without authorization against the creator who wrote that note.

Fukatsu　Indeed, if the poster had received permission, deleting it arbitrarily would mean we are infringing on freedom of expression.

Mizuno　As the “person in charge of the venue” on the internet, providers are caught in a dilemma where they face legal liability from both sides: the risk of being sued for damages for ignoring someone else's rights infringement, and the risk of being sued for damages for easily deleting information that is not actually infringing on rights.

The Provider Liability Limitation Act is a law designed to adjust the important rights and interests of victim relief and the sender's freedom of expression by mitigating the liability of providers who are in such a dilemma.

Kato　Then, how about this? If there is content that contains plagiarism or copying in part, does that content become the copyrighted work of the person who wrote it?

Mizuno　If there is a modification that adds new creativity to the original work/content, it is treated as a “derivative work” with the original work/content as the “original work.” Even if it contains plagiarism or copying, that is how it is considered legally.

Fukatsu So, does it also infringe on freedom of expression if a provider deletes such derivative works?

Mizuno It depends on the specific content, but since the original author also holds the right to prevent unauthorized use of derivative works, if it is clear that there is an infringement of rights, it must be deleted. Conversely, if you delete it easily without knowing whether there is an infringement, you may not be exempted from liability.

Kato I see. But in that sense, all creative works could be called secondary or N-th derivative works. That's why it's difficult.

Mizuno That's right. It is quite difficult not only to determine whether there is copyright infringement, but also whether there is defamation or infringement of privacy rights, not just for the general public but even for legal professionals. If a provider were to bear legal responsibility for every such judgment, no one would want to run a provider service. That would be problematic, which is why the Provider Liability Limitation Act exists.

Kato In that case, if a creator themselves or a third party points out plagiarism or copying, it is quite difficult for the provider to delete that content, i.e., the copyrighted work.

Mizuno The idea behind the Provider Liability Limitation Act is that a provider can only delete content after verifying the identity of the victim/rights holder (the person whose rights are alleged to have been infringed) or their representative, and only if there are reasonable grounds to believe that rights are being unfairly infringed, or if the sender/poster has been queried about whether they consent to deletion and has not objected within seven days.

Fukatsu So the provider can only act if the creator who filed the complaint can prove to some extent that they are the rights holder and it is clearly plagiarism, or if there is no response after asking the sender/poster.

Kato Determining whether it is plagiarism is also extremely difficult. I understand if it's a copy-paste without changing a single word, but there are also cases of citation. Also, if the idea is the same but there is no overlap in expression, can it be called plagiarism?

Fukatsu Suppose a story about a young man whose body stretches like rubber setting out on a journey with friends to become the Pirate King is posted on note...

Kato That story sounds super interesting! Wait, isn't that the setting of "One Piece"? ...For example, if something like that happens and the author gets angry and demands deletion, how should we handle it?

Mizuno First, confirm whether they are the rights holder. Then, if they are the rights holder, determine whether there are "reasonable grounds to believe that rights are being unfairly infringed." However, except in cases where the infringement of rights is clear, I think it is generally difficult to take action just because the ideas or settings are similar.

Kato I see. Ideas cannot be protected legally.

Fukatsu What about past actions? If a user commits copyright infringement and then deletes it immediately, is there anything you can do as a provider?

Mizuno Legally, providers have neither the right nor the obligation to punish them.

Kato This is the frustrating part. These kinds of disputes have existed since before the internet, but in the internet age, they have become more apparent, and I think the number of cases is increasing. So, I am always thinking about what we, as platform operators, can do and what we should do.

Mizuno As I have already discussed regarding the Provider Liability Limitation Act, it is common in practice for the provider to voluntarily contact the sender/poster to have the content voluntarily changed or deleted, and to resolve the matter peacefully. However, providers cannot monitor everything, and there are inevitably limits.

What should users do? Have literacy and aim for peaceful resolution

Fukatsu In a situation where it is difficult for creators to sue and prove copyright infringement, and we cannot easily delete content, I want to think about realistic solutions. How can we make things easier for users? Personally, I don't think anyone—neither the person whose copyright was infringed nor the person who infringed it—is happy when people go to the police or file a lawsuit.

Mizuno This may sound a bit like moralizing, but I think it is important for individual creators to have literacy regarding copyright, to know that it costs money, and to realize that their own work was born from the legacy of the past. Furthermore, it is also important to realize that they themselves will influence future creators.

Kato I see. While this is a matter of law, it is also often a matter of common courtesy and etiquette.

Fukatsu I think it would be good to categorize things into three levels—'neighborhood squabble,' 'conflict,' and 'nuclear war'—and clearly state the time and economic costs involved at each stage. I believe some people launch missiles right away out of ignorance when a simple 'I'm sorry' would suffice. It's a waste to accidentally start a nuclear war.

Mizuno I think it's a good idea to present it in a manual like that.

Fukatsu Having my apps copied is an everyday occurrence for me, and when I get annoyed and point it out via email or similar, the other party often has no malicious intent. I think just sending one direct email before involving others and blowing things out of proportion can make a difference.

Creating rules to continue creating freely while maintaining safety

Mizuno As a measure for providers, one option is to state in the terms of service that they may ban users if there is a risk of copyright infringement. Not as a law, but as a rule for community management.

Kato I see.

Mizuno For example, 'NAVER Matome' has established its own rules based on Japan's Provider Liability Limitation Act, using a method similar to the American DMCA*, where they take down content once a copyright infringement claim is received.

*Abbreviation for the Digital Millennium Copyright Act. In the United States, this law allows for the filing of copyright infringement claims against providers to have content removed.

Fukatsu The DMCA has both pros and cons. While it can remove copyright-infringing works, it also maximizes the risk of false accusations where non-infringing works are removed.

Mizuno That's true. Therefore, I think it is necessary to obtain clear consent from users through terms of service and the like. Also, for example, YouTube has created its own ecosystem called 'Content ID' to detect whether copyrighted content is being used without permission.

If the law cannot be changed, the shortcut would be for providers to develop their own systems and architectures through contracts with users (terms of service) or through their services.

Fukatsu As a grand design, we must stand on the premise that neither copyright infringement nor defamation should undermine freedom of expression. On top of that, even if we cannot handle individual cases, we should create a discipline that keeps the probability of disputes in court down to 0.01%.

Mizuno Personally, I think it's fine to have some degree of mechanical judgment through a mechanism like Content ID. Of course, I think it's necessary to foster a common understanding, such as what percentage of similarity constitutes infringement. On the other hand, if you create guidelines that are too explicit, it becomes close to censorship, and one must be careful as that could potentially lead to an infringement of freedom of expression as well.

Kato Our mission is to 'enable everyone to start and continue creating.'

Mizuno Today's discussion was about how copyright as a right is currently too strong and may be hindering the incentive for future creators to express themselves, but note's mission overlaps with the world that copyright law originally aimed for, doesn't it?

Fukatsu Protecting freedom of expression and the rights of creators, and developing culture.

Kato I would like to create minimum rules for continuing creative activities freely while maintaining a safe state of not infringing on copyright and not having it infringed upon. Thank you for today. If it's well-received, let's hold an event with this kind of content!

The end.

[4-Part Series]
What is copyright in the first place? (Part 1)
What specifically constitutes copyright infringement? (Part 2)
Where is the boundary for moral rights of authors? (Part 3)
To continue creating freely without infringing on copyright (Part 4)