Digital Distribution in Japan: Understanding the Right of Public Transmission (Koshu Soshin Ken)

Japanese Attorney at Law - Bengoshi L.L.

• 8 min read

In an era dominated by digital content and online services, the ability to control how copyrighted works are disseminated over networks is paramount for creators and rights holders. Japanese copyright law (著作権法 - Chosakuken-hō) addresses this comprehensively through the "right of public transmission" (公衆送信権 - kōshū sōshin ken), a broad exclusive right granted to authors and copyright holders under Article 23. This right encompasses various forms of digital delivery, including a crucial preparatory act known as "making transmittable" (送信可能化 - sōshin kanōka). For any business involved in online content distribution, web hosting, streaming services, or cloud-based platforms targeting the Japanese market, a thorough understanding of this right is indispensable.

What is "Public Transmission" (Kōshū Sōshin) in Japan?

Article 2, Paragraph 1, Item 1(vii-ii) of the Japanese Copyright Act defines "public transmission" as "the transmission of wireless communication or wire telecommunication intended for direct reception by the public."

Several key terms within this definition require elaboration:

  • "The Public" (公衆 - kōshū): Under Article 2(5), "the public" includes unspecified persons or specified persons who are numerous. This broad definition means that transmissions targeting a large, defined group (like subscribers to a service) or an undefined group (like general internet users) can both qualify as being made "to the public."
  • "Intended for Direct Reception by the Public": This phrase distinguishes public transmissions from internal or intermediary transmissions. For example, a news crew transmitting footage from a remote location back to their broadcast station, or a key television station transmitting programs to its local network affiliates for subsequent broadcast, would generally not be considered "public transmissions" at that stage, as they are not intended for direct reception by the end-user public. The Maneki TV case (Supreme Court, January 18, 2011) and the Rokuraku case (Supreme Court, January 20, 2011), which dealt with remote TV viewing and recording services, involved transmissions ultimately intended for individual users (the public) and were analyzed under public transmission principles.

The Scope of the Right of Public Transmission (Article 23(1))

Article 23, Paragraph 1 grants authors the exclusive right to publicly transmit their works. This right is not monolithic; it covers several distinct types of activities, including the pivotal right of "making transmittable."

1. Broadcasting (放送 - hōsō) and Wire Broadcasting (有線放送 - yūsen hōsō)

These are the more traditional forms of public transmission:

  • Broadcasting (Article 2(1)(viii)): Defined as the public transmission of wireless communication intended for simultaneous reception by the public of the same content (e.g., traditional radio and television).
  • Wire Broadcasting (Article 2(1)(ix-ii)): Defined as the public transmission of wire telecommunication (excluding transmissions within the same premises for computer programs – see below) intended for simultaneous reception by the public of the same content (e.g., cable television).

2. Automatic Public Transmission (自動公衆送信 - jidō kōshū sōshin)

Defined in Article 2(1)(ix-iv), "automatic public transmission" refers to any public transmission (excluding broadcasting and wire broadcasting) that is made automatically in response to a request from the public. This primarily covers:

  • On-demand services: Streaming video or music where the user initiates the transmission by selecting content.
  • Website accessibility: When a user accesses a website, the server automatically transmits the website data to the user's device in response to their request (e.g., clicking a link or typing a URL).

3. The Crucial Right of "Making Transmittable" (Sōshin Kanōka)

Perhaps the most significant aspect of the right of public transmission for online service providers is the exclusive right of "making transmittable" (送信可能化権 - sōshin kanōka ken). Article 2(1)(ix-v) defines "making transmittable" as placing information in a state where it can be automatically publicly transmitted, typically by:

  • Uploading information to a server connected to a public network (like the Internet) from which automatic public transmission can occur.
  • Connecting a recording medium containing information to such a server.

The critical point is that the right of "making transmittable" is infringed at the moment the work is made available on a server accessible to the public, even if no member of the public actually accesses or receives a transmission of that work. This preparatory act itself falls under the copyright holder's exclusive control. This means, for instance, that simply uploading a copyrighted music file to a publicly accessible web server without authorization infringes the right of making transmittable, regardless of whether anyone ever downloads or streams that file.

The Supreme Court cases of Maneki TV and Rokuraku, while also dealing with issues of who is the "transmitting entity" for infringement purposes, underscored the importance of control over the servers and the state of transmissibility.

Right to Communicate Publicly Transmitted Works (Article 23(2))

In addition to the right to initiate public transmissions, Article 23, Paragraph 2 grants copyright holders the exclusive right "to communicate to the public, by means of a receiving apparatus, a work publicly transmitted."

This covers situations such as:

  • A restaurant or bar showing a live television broadcast on a screen for its patrons.
  • A hotel playing a radio broadcast in its lobby.

It's important to note the nuance here: this right primarily applies to the simultaneous re-communication of a work that is being publicly transmitted. If a broadcast is recorded and then played back to the public later, that playback would typically be analyzed under other rights, such as the right of public performance (for music) or public screening (for audiovisual works), rather than Article 23(2).

Key Exceptions and Specific Rules

While the right of public transmission is broad, there are important exceptions and specific rules that affect its application:

1. Transmission Within the Same Premises (同一構内送信 - dōitsu kōnai sōshin)

The definition of "public transmission" in Article 2(1)(vii-ii) includes a proviso that excludes "transmission by means of wire telecommunication equipment, one part of which is located on the same premises where the other part is located (or, if the premises are occupied by two or more persons, within the area occupied by a single person)."

  • General Effect: This means that, generally, internal transmissions within a single building or complex (e.g., an internal office network, a hotel's internal TV system not connected to external sources) are not considered "public transmissions." This allows, for instance, a concert venue to amplify a live performance within the venue without it being a separate "public transmission" (it would be part of the public performance).
  • Exception for Computer Programs: Crucially, this same-premises exclusion does not apply to the transmission of computer programs. Transmitting a computer program over an internal network (e.g., a LAN) within a company is still considered a "public transmission" (specifically, a wire broadcast if simultaneous to multiple users, or potentially an automatic public transmission if made available on an internal server for employees to access on demand). This special treatment for programs reflects concerns that widespread unlicensed internal use could significantly undermine the market for software licenses. The PDF material notes that this distinction ensures that if such internal program transmission were for non-profit educational purposes within an institution, the stricter rules around public transmission would apply, rather than potentially more lenient rules for "performance" like Article 38(1) (non-profit, free performance).

2. Specific Limitations under Article 38

Article 38 provides several limitations for non-profit uses, some of which interact with public transmission:

  • Article 38(2): Allows for non-profit, charge-free wire broadcasting or automatic public transmission of works that are being broadcast (i.e., simultaneous retransmission, typically for improving reception in areas with poor broadcast signals).
  • Article 38(3): Permits the public communication of broadcast or wire-broadcast works via a receiving apparatus if done for non-profit purposes and without charging the audience (first sentence), or, even if for profit or with a charge, if done using "ordinary home receiving apparatus" (e.g., a standard TV in a small shop or waiting room) (second sentence).

Implications for Online Services and Digital Businesses

The breadth of the right of public transmission, particularly the inclusion of "making transmittable," has profound implications for a wide range of online activities:

  • Websites and Web Hosting: Operating a website that makes copyrighted content available to users directly implicates the right of making transmittable (by uploading content to the server) and the right of automatic public transmission (when users access the content). Web hosting providers who offer the infrastructure must also be mindful of their potential role, though direct liability usually falls on the party controlling the content and making it transmittable.
  • Streaming Services (Audio and Video): Both live streaming and on-demand streaming services clearly engage the right of public transmission (broadcasting/wire broadcasting for live, automatic public transmission for on-demand) and making transmittable (for the content stored on their servers).
  • Cloud Storage Services: The application of copyright to cloud storage is nuanced. If a user uploads copyrighted material to a personal cloud locker for their own private use, the user's act of uploading (making transmittable from their end) might be for private reproduction (Article 30). The cloud service provider's role can become complicated if their system architecture or actions could be construed as them engaging in "making transmittable" to the public or facilitating such transmissions, especially if sharing functionalities are involved.
  • User-Generated Content (UGC) Platforms: Platforms hosting UGC face significant challenges. While users are primarily responsible for the content they upload (making transmittable), the platform's involvement in storing, indexing, and making that content accessible can raise questions of liability, often centering on intermediary liability rules (not detailed here but a related concern).
  • Online Gaming: The transmission of game software, updates, audiovisual content within the game, and communications between players all involve various forms of public transmission.
  • Linking and Embedding: Deep linking to or embedding infringing content hosted on third-party servers can, in some circumstances, be found to constitute an infringement of the right of public transmission or making transmittable, particularly if the linker actively makes the content appear as part of their own offering or significantly facilitates access to infringing material. The Myuta case (Tokyo District Court, May 25, 2007), involving a service that facilitated downloads to mobile phones from user-copied CD tracks stored on its servers, touched on the liability of service providers who exert significant control over the process of making works transmittable.

Practical Considerations for Businesses

Given the robust nature of this right, businesses involved in any form of digital distribution in Japan should:

  • Secure Licenses: Ensure that all necessary licenses for public transmission, including making transmittable, are obtained from copyright holders for any third-party content used.
  • Understand Preparatory Acts: Recognize that merely uploading content to a publicly accessible server can constitute an infringement of the right of making transmittable.
  • Technological Measures: Implement appropriate technological protection measures where feasible to prevent unauthorized transmission of copyrighted works.
  • Terms of Service: For platforms and services, clear terms of service regarding user conduct and copyright compliance are essential, though they may not absolve the platform of all responsibility.
  • Internal Networks (Programs): Remember the special rule for computer programs: transmission over an internal company network is generally considered a public transmission requiring authorization.

U.S. copyright law grants an exclusive right to "perform the copyrighted work publicly," which includes transmission of a performance or display to the public "by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times" (17 U.S.C. § 101, definition of "to perform or display a work 'publicly'"). This covers broadcasting, streaming, and making works available on websites.

The concept of "making available," akin to Japan's "making transmittable," has been a subject of international discussion and is recognized in many jurisdictions. While not explicitly a separate enumerated right in the U.S. Copyright Act in the same way as sōshin kanōka is part of Article 23, courts have found that making works available for download or streaming can constitute an infringement of the distribution or public performance rights. Japan's codification of "making transmittable" as part of the public transmission right provides a clear statutory basis for addressing this crucial preparatory act.

Conclusion

The right of public transmission (kōshū sōshin ken), including its vital component of the right of making transmittable (sōshin kanōka ken), is a cornerstone of copyright protection in the digital environment in Japan. Its broad scope encompasses virtually all forms of online content delivery, from traditional broadcasting to on-demand streaming and the mere act of uploading content to a web server. For businesses operating in the digital space, a comprehensive understanding of this right, its nuances, and its exceptions is not just a legal formality but a fundamental requirement for compliant and successful operations in the Japanese market.