Opinions on the draft report from the Copyright
Council under the Cultural Council
Submitted on behalf of the International Federation of the Phonographic Industry by
Submitted on behalf of the Recording Industry Association of America by
On behalf of IFPI and the Recording Industry Association of America (RIAA), we would like to submit the following join comments in relation a variety of issues presently under consideration in Japan. Specifically, we will address there critical issues: (1) the right to control parallel importation; (2) term of protection; and (3) statutory damages. IFPI and RIAA are trade associations representing the global and American recording industries respectively. Our members created and distribute recordings of great diversity on a worldwide basis, and rely entirely on the strength of copyright protection to sustain their investment in recording and distributing music. Our members, both large and small, and regardless of whether they release 5 records in a year or one thousand, share a common thread -- the sanctity of copyright protection provides their ability to bring music to society.
As set forth below, we strongly endorse the adoption of a right control importation of phonograms on a non-discriminatory basis, and we call upon the Government of Japan to join the many countries that currently protect sound recordings for more that 50 years. We recommend consideration of the US term (95 years from publication), but propose, at a minimum, a term of 70 years from publication -- the term recently adopted in Japan for the protection of audio-visual works. Finally, we urge Japan to strengthen its enforcement regime through the adoption of statutory damages. We need to be increasingly vigilant in the current environment to ensure that there are tools with which to deter piracy, and the existence of statutory damages is one such important tool.
We believe that it is important for the Copyright Act of Japan to provide an importation right, and we wholeheartedly endorse the proposition that such a right should be extended to phonogram producers as quickly as possible.
The importation into the Japanese market of copyright protected content without right holders' consent has negative effects on the entertainment industry in Japan that could be eliminated by the introduction of an importation right. The following arguments provide a detailed analysis of the need for such a right in Japan and its possible impact on the domestic market:
It is generally acknowledged that investing in the production of sound recordings involves a considerable element of risk. Recorded music as the focus of consumer attention falls somewhere between a necessity and a luxury; the market is supported by regular but discretionary spending.
While producing successful artists and recordings is essential to the prosperity of a recording company, equally important is the company's ability to market, distribute and sell its products locally. Without a reliable, secure and efficient mode of distribution the music industry simply cannot maintain the market presence it needs.
The ability to control the flow of products into a market is therefore essential to the maintenance of the necessary manufacturing and distribution structures. Conversely, distortion to markets created by uncontrolled and opportunist importation undermines this infrastructure, while putting no long-term solution in its place. Because parallel importation depends on external economic factors that are not matched to the local market's cost structures, its effect on local markets can fluctuate dramatically and significantly increase the inherent uncertainties of the business.
The Recording industry is a complex and unpredictable business. Only a small minority of all recordings have all the necessary ingredients to become a 'hit' worldwide -- indeed, significantly less than 5% of total releases fall into this category. However, these 'hits' generate around 70% of the overall turnover of the recording industry, thus allowing the industry to cover most of the losses from less successful release. A significant part of this turnover is also used to invest in new local artists and repertoire, whether or not they ultimately become successful, and in the development of new markets.
Parallel importers and retails, who sell parallel imported albums, take a free ride on marketing and promotion efforts by record companies in the local market and make no contribution whatsoever to the further development of musical culture. Not only do they cherry-pick the successful titles, but they also exploit the success of the recording industry's marketing initiatives and cost intensive placement and distribution of goods. Record companies, and the distributors and retailers they cooperate with, invest in the promotion and marketing of products in way that is tailored for (and at the costs charged in) the national market. They work with domestic partners thereby fostering the domestic advertisement and promotion sector.
In contrast, parallel importers simply reap the fruits of successful marketing and promotion either done by other parties in Japan or by the overspill of successful placement of goods in other markets. This is a framework that encourages neither fair competitions nor the placing of a rich and wide variety of creative products.
The effect of systematic exploitation of parallel import retail strategy is the growth of large and, often international retail chains at the cost of the market share of small independent retailers. This is due to the fact that bigger retailers with an international structure are better equipped to systematically target titles that have already entered the charts in other markets, to buy cheaply in bulk in countries with lower overall cost structures, and to exploit currency fluctuations.
The experience in other markets has shown that the removal of controls over the parallel imports of sound recordings has benefited the big retailers and has created the basis for the displacement of independent retailers by retail chains.
From the consumer's point of view, a CD is not just the music. It is creative material that is fixed on a medium that adheres to quality standards and has some aesthetic design and value in itself. This is accompanied by the presentation of the artwork, additional information about the performer, author, the lyrics and music. The creative aspect of the CD packaging is linked with the presentation of certain image in advertisement and promotion. Experience has shown that parallel imports often diverge from established quality standards and appearance, which result in either reduces consumer confidence, confusion about responsibility for the product, or watering down of loyalty to performers and their products.
In view of these concerns and considering that it is generally not the retailer but the record producer who finances the promotion, placement and advertisement, it seems all the more necessary to give right holders sufficient control over the placement of the products after the initial release. Otherwise, it is inevitable that poorer quality products will compete with better and more carefully designed products to the detriment of both consumers and right holders.
The lack of protection of parallel imports increases the trade pirated goods, There have been instances of people purchasing parallel imported products only to find out that they were illegal copies of original sound recordings, or stolen goods. this leads to confusion among consumers who might not be able to distinguish between legal and pirated products at first sight, and consequently hurts the recording producers' legitimate sales as well as their reputation for providing high quality products.
A number of related domestic industries benefit from business resulting from a domestic approach to the marketing and sale of sound recordings. There sectors include not only the manufacturing of CD's but also targeted promotion and placement of product. Each country presents a unique set of cultural, economic and commercial factors that shape decisions over when, where and under what terms to manufacture, promote, and distribute phonograms. To deprive authors, performers and producers of the ability to protect their investment from imports originating in states where totally different economic and market conditions exist, does not only have negative economic consequences for the creative communities, but also has detrimental effects on other industries and businesses involves in the activities of the recording industry. In the interest of fostering the national economy and domestic music business, it is important to ensure that a maximum of steps in the creation and distribution chain take place in Japan itself in other to maximise the 'multiplier effect' for domestic companies resulting from domestic interest in international and domestic repertoire. A CD that is designed, produced (incl. artwork and jewel case), packaged, promoted, and marketed in Japan creates a more positive market impact that can be achieved through the mere importing and sale of low value and often low quality products from another country -- and more money and jobs related to the business in Japan.
RIAA and IFPI endorse the extension of the copyright low to provide producers of phonograms with the right to control importation, but we were somewhat concerned about certain elements of the Council's reports, which would appear to give consideration to the adoption of legislation granted solely in respect of Japanese repertoire. While we fully understand that much of the consideration of this issue emanates from a desire to provide Japanese companies with the ability to license their works in foreign markets without fear of undermining the Japanese marketplace, we submit that precisely the same situation affects foreign rightholders in Japan as well. If record companies are not in a position to price differentiate between developed markets such as Japan and less developed countries in the region, then they are limited in their ability to offer low cost products that bear a relation to the spending power in any given nation. This can result in pricing policies that are not wholly rational when viewed from a national economic perspective -- but precisely because companies cannot set policies based on "national" factors if they are unable to protect borders in relevant ways. We thus strongly caution against the adoption of discriminatory legislation, and call upon the Government to provide rights to control importation with regard to all repertoire.
Demographic, economic and technological changes justify the establishment of longer terms:
As a result of these changes, it takes longer for copyright holders to receive fair return for their creative work and investment. The situation needs to be redressed by an extension of the term of protection. Furthermore, a longer term of protection keeps pace with (and enables right holders to benefit from) the substantially increased commercial life of copyright works resulting from the rapid growth in communications media.
Different terms of protection have traditionally caused problems for the trans-frontier circulation of goods and services. The situation becomes particularly problematic in the on-line environment where with one single act (e.g. making available, streaming) a phonogram is being exploited simultaneously in a great number of countries, if not throughout the world.
Thus, having differing terms of protection is likely to hamper the development of legitimate electronic commerce in general and of legitimate on-line distribution of music in particular. The current situation also producers a great deal of legal uncertainty for the on-line exploitation of works and phonograms. The US provides a term of protection of 95 years from the publication of the recording. More and more countries are adopting terms in excess of 50 years, including all of America's trading partners that have recently concluded bilateral free trade agreements.
The existence of shorter terms of protection will facilitate piracy, as phonograms that have fallen into the public domain in one country may be distributed on-line from that country and, even if such acts will constitute an infringement of rights in the countries of reception, the effective enforcement of rights may prove difficult.
New markets, new media and new technologies have increased the value and interest of works, performances and phonograms. Longer uniform terms will facilitate and provide an incentive for the development of new ways of disseminating music, including the dissemination of back catalogue and specialised genres of music (which could be particularly suitable for new and specifically targeted forms of on-line distribution).
Authors have a great incentive to create new works and producers a greater incentive to invest in those countries where the legal framework ensure appropriate compensation and equitable returns.
In global markets, an extended term of protection is an important element to meet foreign competition and to obtain adequate international protection (in particular, in view of the fact that most countries apply the so-called "comparison of the terms of protection rule" and, accordingly, do not grant protection to foreign works beyond the protection that such works enjoy in their country of origin).
Longer terms indicate to local and foreign right holders a country's commitment to protect rightholders, thereby attracting them and discouraging 'rightholder and artistic flight' to other areas with greater protection. It ensures revenues will be obtained for local rightholders and the local economy. It also ensures that local rightholders receive the same advantageous term of protection as their foreign counterparts.
A longer term will also be an incentive for the creation of new works, especially at a time when: (i) production costs have risen; (ii) marketing and distribution costs remain very high; and (iii) rampant piracy makes it harder to obtain a fair compensation in the same time span as before.
Income from existing works/phonograms is used to finance new works/phonograms. Additional revenues received as a result of a longer term of protection enable rightholders to take greater risks with new artists and creators.
Rightholders invest not only in the initial creation but also in all subsequent acts to bring a work or a phonogram to the public. There is less incentive to publish and promote certain works/phonograms once they are not protected any longer, and as a result such works/phonograms become harder to find (for instance because they exist only in formats that are not widely used anymore) and may disappear altogether.
May works/phonograms that are about to fall into the public domain have been fixed in perishable media such as record or tapes. Also, many original recordings are extremely fragile and subject to high degrees of deterioration and degradation. Digital technology offers new opportunities to re-master many of such works, recordings, etc, to make them accessible to a wider public and to facilitate their dissemination. At the same time, restoration and preservation is a very costly and time-consuming investment. Absent a longer term, few will risk the required commercial investment. In other words the lack of protection will restrain the dissemination of certain works/phonograms once they fall into the public domain.
In several countries the producer of an audio-visual work enjoys author's right and therefore a longer term of protection Japan recently adopted a term of protection of 70 years from publication with respect to audio-visual works. There is no reason why producers of phonograms are discriminated against and do not enjoy the same term of protection.
Pre-established damages are badly needed to ensure adequate compensation in all cases of counterfeiting and piracy.
Even the most workable provision on actual damages have their limitations. In an increasing number of cases involving counterfeiting and piracy, it is simply impossible to provide hard evidence of the volume of the infringement or the injury caused. In such cases, calculating actual damages on the basis of the full price payable for the relevant use fails to produce a satisfactory result, mainly because it is impossible to provide hard evidence of the total number of copies made, and/or because no similar or comparable licenses exist in the market.
On-line piracy is another similarly problematic area. In most cases it is difficult, If not impossible, to show just how many copies have been made available and even harder to provide evidence on the number of illegal downloads from an internet server. Even in a 'typical' on-line piracy case, the number of works or phonograms made available is often well in excess of 1000, and the number and the identity of works downloaded before detection is practically impossible to prove. The problem can be exacerbated by the data protection rules that sometimes inherit civil enforcement actions by restricting the gathering of evidence regarding the scope of an on-line infringement.
In situation like those described above, the burden of proving the exact volume of the infringement - the true number of copies made and distributed - is virtually impossible to satisfy. Unless pre-established damages are made available as alternative to actual damages, counts will be to provide adequate compensation to rightholders under the applicable laws.
The WTO TRIPs Agreement contemplates this remedy. Pre-established damages as described by the WTO TRIPs agreement are not punitive damages. Rather, pre- established damages offer the courts an alternative route to award rightholders just compensation in situations - like the once highlighted above - where the rules applicable to actual damages might hinder obtaining a fair result.
OTO-NETAさん、本当におつかれさまでした。
正に自分達に有利な事項を、都合の良い理由を並べて
主張しているに過ぎませんね。
アメリカに限らず業界団体というのは、ごねれるだけ、ごねるという所はありますし、
ごねて少しでも自分達に有利なシステムを作るのがこいつらの仕事ですから。
この主張を日本のレコ協がみて間に受ければ受ける程、馬鹿を見ること位普通判るはずですが、
ある意味（並行輸入の阻止という面で）利害は一致してるのでしょうかね？…
やはり消費者が弱いし騒がないという所にむしろ問題を感じます。
まあ一般人には判らないようにコソコソやろうと
した訳ですけど・・・
はじめまして。
訳、お疲れ様です。
当方の訳までご紹介いただき、ありがとうございます。
にしてもほんと、読んでると「うがー」と言いたくなる英文ですよね。これで意見自体が「うん、うん」と言えるものならまだよかったんですが、「どうしてそうなるかなあ」とつっこみ入れつつ訳してました。
by ぼんくら on 04/05/02 13:50トラックバックを二重に打ったようです。すいません。こっちも目障りだったら消して下さい。お手数かけます。
本当に翻訳ありがとうございます。
それにしても、こういうコメントが存在するとなると、ますます不安が募る一方です。
すみません、間違ってトラックバックを2回打ってしまいました。
目障りでしたら一つは消しておいて下さい。
あと、こんな長文の翻訳お疲れ様でした。
非常に分かりやすい訳ですし、これでたくさんの人に
このパブリックコメントを読んでもらえますね。