Neighboring Rights in Japan: How are Performers, Record Producers, and Broadcasters Protected?

Japanese Attorney at Law - Bengoshi L.L.

• 7 min read

While copyright law primarily protects the authors of original creative works, another crucial layer of protection exists for individuals and entities who play a vital role in bringing these works—and other cultural expressions—to the public. These are known as "neighboring rights" or "rights neighboring on copyright" (著作隣接権 - chosaku rinsetsu ken) under the Japanese Copyright Act (著作権法 - Chosakukenhō). This article explores what these rights entail and who benefits from them in Japan.

What are Neighboring Rights?

Neighboring rights are granted to those whose contributions are essential for the dissemination and public enjoyment of creative works, even if they are not the authors of the underlying works themselves. These rights acknowledge the artistic, technical, and financial investments made by performers, producers of phonograms (sound recordings), broadcasting organizations, and wire diffusion (cablecasting) organizations.

Under Article 89 of the Japanese Copyright Act, these four categories of contributors are granted specific exclusive rights or rights to remuneration concerning their respective contributions.

Key Characteristics of Neighboring Rights:

  • Distinct from Copyright: Neighboring rights are separate from and do not affect the copyright in the underlying work being performed, recorded, or broadcast (Article 90). For example, a song may have copyright belonging to the composer and lyricist, while a specific recorded performance of that song will have neighboring rights for the performer and the record producer.
  • Subject Matter: Interestingly, neighboring rights can arise even if the subject matter being performed, recorded, or broadcast is not itself a copyrighted work. This could include performances of traditional folk songs in the public domain, recordings of natural sounds like bird songs, or broadcasts of live sporting events.
  • Basis of Protection: While some beneficiaries, particularly performers, engage in activities with a strong creative or interpretative element, neighboring rights are generally understood to protect the investment, skill, and organizational effort involved in making performances, recordings, and broadcasts available to the public. The level of inherent "creativity" protected varies significantly; for instance, a performer's interpretation is highly personal, while a broadcaster's contribution is more technical and organizational.
  • No Formalities: Similar to copyright in Japan, neighboring rights arise automatically upon the act of performance, fixation of sounds, or transmission. No registration or other formalities are required for their protection (Article 89, Paragraph 5).
  • Scope and Duration: Generally, neighboring rights provide a more limited set of exclusive controls compared to copyright, and their duration of protection is often shorter. This reflects their role in facilitating the dissemination of works, balancing protection with the need to avoid unduly hindering the circulation of the underlying copyrighted content.
  • Types of Rights: Neighboring rights comprise both exclusive rights (allowing the rights holder to authorize or prohibit certain acts) and rights to remuneration (e.g., the right of performers and record producers to receive secondary use fees when commercial phonograms are used in broadcasts).
  • Limitations: Like copyright, neighboring rights are subject to a range of limitations for purposes such as private use, quotation, educational activities, and news reporting (Article 102). However, the specific limitations applicable to neighboring rights are not identical to those for copyright.

Beneficiaries and Their Respective Rights

Let's examine the specific rights granted to each category of neighboring rights holder:

1. Performers (実演家 - Jitsuenka)

A "performance" (jitsuen 実演) includes acting, dancing, musical playing, singing, reciting, or otherwise performing a work, as well as similar artistic presentations of non-works (e.g., acrobatics, traditional arts) (Article 2(1)(iii)). "Performers" (jitsuenka 実演家) are the individuals who engage in these activities, as well as those who conduct or direct such performances (Article 2(1)(iv)).

Performers in Japan enjoy both economic rights and moral rights:

A. Economic Rights of Performers:

  • Right of Making Sound or Visual Recordings (録音権・録画権 - rokuonken / rokugaken) (Article 91): Performers have the exclusive right to make sound recordings or visual recordings of their live performances. This right is subject to a "one-chance principle" in certain situations: if a performer authorizes their performance to be incorporated into a cinematographic work, their right to control further recording for that film is generally exhausted (Article 91(2)), though exceptions apply if only the sound from their performance is used separately.
  • Right of Broadcasting and Wire Diffusion (放送権・有線放送権 - hōsōken / yūsen hōsōken) (Article 92): Performers have the exclusive right to broadcast their live performances or diffuse them by wire (cable). This right also has limitations, for instance, concerning performances already fixed in authorized cinematographic works or authorized recordings for broadcast (Article 92(2), Article 94).
  • Right of Making Transmittable (送信可能化権 - sōshin kanōkaken) (Article 92-2): This grants performers the exclusive right to make their fixed performances available for on-demand transmission via the internet or similar networks. This is a crucial right in the digital environment. Limitations apply, for example, to performances already fixed in visual recordings with the performer's authorization for inclusion in a film.
  • Right of Transfer of Ownership of Fixations (譲渡権 - jōtoken) (Article 95-2): Performers have the exclusive right to offer their fixed performances (on sound or visual recordings) to the public by transferring ownership of those recordings. This right is subject to exhaustion after the first lawful sale of a particular copy within Japan.
  • Right of Lending of Commercial Phonograms (貸与権 - taiyoken) (Article 95-3): For commercial phonograms incorporating their performances, performers have the right to authorize or prohibit their lending to the public for a period of 12 months from their first sale. After this period, they are entitled to remuneration if the phonograms are lent commercially.
  • Right to Secondary Use Fees for Commercial Phonograms (Article 95): When commercial phonograms incorporating their performances are broadcast or diffused by wire (excluding certain non-profit uses), performers are entitled to receive secondary use fees. This right is typically managed by collective management organizations. Recent amendments have expanded this to cover direct digital transmission of sound recordings by broadcasters.

B. Moral Rights of Performers (実演家人格権 - jitsuenka jinkakuken) (Articles 90-2 and 90-3):
Introduced in 2002, these rights are personal and inalienable, protecting the performer's personal link to their performance:

  • Right of Attribution (氏名表示権 - shimei hyōjiken) (Article 90-2): The right to decide whether and how their name is displayed in connection with their performance.
  • Right of Integrity (同一性保持権 - dōitsusei hojiken) (Article 90-3): The right to preserve the integrity of their performance against any modification that would be prejudicial to their honor or reputation.
    Post-mortem protection for these moral interests is also provided (Article 101-3, Article 116).

2. Producers of Phonograms (レコード製作者 - Rekōdo Seisakusha)

A "phonogram" (rekōdo レコード) refers to any material fixation of sounds (e.g., CDs, LPs, digital audio files), excluding those primarily incorporated into cinematographic works (Article 2(1)(v)). The "producer of a phonogram" (rekōdo seisakusha レコード製作者) is the person or entity who first fixes the sounds onto such a phonogram (Article 2(1)(vi)). This typically means the party that takes the initiative and financial responsibility for the recording session, rather than the sound engineer.

Phonogram producers have the following exclusive economic rights:

  • Right of Reproduction (Article 96): The exclusive right to reproduce their phonograms (i.e., make copies of the fixed sounds). This protects the specific recording, not the underlying musical work or performance, which are protected separately.
  • Right of Making Transmittable (Article 96-2): The exclusive right to make their phonograms available for on-demand transmission.
  • Right of Transfer of Ownership (Article 97-2): The exclusive right to offer copies of their phonograms to the public by transferring ownership. This is subject to exhaustion after the first lawful sale in Japan.
  • Right of Lending of Commercial Phonograms (Article 97-3): The right to authorize or prohibit the lending of their commercial phonograms for 12 months from first sale, and a right to remuneration thereafter.
  • Right to Secondary Use Fees for Commercial Phonograms (Article 97): Similar to performers, phonogram producers are entitled to remuneration when their commercial phonograms are broadcast or diffused by wire. This right is also typically managed collectively.

3. Broadcasting Organizations (放送事業者 - Hōsō Jigyōsha)

A "broadcast" (hōsō 放送) is a public transmission by wireless means intended for simultaneous reception by the public (Article 2(1)(viii)). A "broadcasting organization" (hōsō jigyōsha 放送事業者) is one that engages in broadcasting as a business (Article 2(1)(ix)).

Broadcasting organizations have exclusive rights regarding their broadcasts:

  • Right of Reproduction (Article 98): The right to make sound or visual recordings of their broadcasts and to reproduce them by photography or similar methods.
  • Right of Rebate broadcasting and Wire Diffusion (Article 99(1)): The right to authorize others to rebroadcast their broadcasts or diffuse them by wire (cable).
  • Right of Making Transmittable (Article 99-2): The right to make their broadcasts available for on-demand transmission.
  • Right of Communication of Television Broadcasts (Article 100): The right to communicate their television broadcasts to the public using special image-enlarging apparatus (e.g., large public screens).

4. Wire Diffusion Organizations (有線放送事業者 - Yūsen Hōsō Jigyōsha)

"Wire diffusion" (yūsen hōsō 有線放送) refers to public transmission by wire telecommunication intended for simultaneous reception by the public (Article 2(1)(ix-2)). A "wire diffusion organization" (yūsen hōsō jigyōsha 有線放送事業者) engages in this as a business (Article 2(1)(ix-3)). Importantly, if a wire diffusion organization merely retransmits a broadcast signal without alteration, it generally does not acquire its own neighboring rights for that retransmission; the rights remain with the original broadcasting organization (Article 9-2(1) proviso).

For their original wire diffusions, these organizations have rights analogous to broadcasting organizations:

  • Right of Reproduction (Article 100-2).
  • Right of Broadcasting and Rediffusion by Wire (Article 100-3).
  • Right of Making Transmittable (Article 100-4).
  • Right of Communication of Television Wire Diffusions (Article 100-5).

Duration of Protection (Article 101)

The term of protection for neighboring rights is generally:

  • For performances and phonograms: 70 years from the year following the date of the performance or the first fixation of sounds. If a phonogram is published within this period, the term is 70 years from the year following its publication.
  • For broadcasts and wire diffusions: 50 years from the year following the date of the broadcast or wire diffusion.

As stipulated in Article 90, the existence or exercise of neighboring rights does not affect the copyright in the underlying works being performed, recorded, or transmitted. This means that for many uses, permissions may be required from both the copyright holder of the work (e.g., the composer of a song) and the relevant neighboring rights holders (e.g., the performer and record producer of a specific recording of that song).

Even if a performer performs a work without the copyright holder's permission (which itself might be a copyright infringement), neighboring rights in that unauthorized performance can still arise. This ensures that third parties cannot freely exploit the unauthorized performance, although the performer might face liability towards the original copyright holder.

Conclusion

Neighboring rights under Japanese copyright law provide essential protection for the often substantial artistic, technical, and financial contributions made by performers, phonogram producers, broadcasting organizations, and wire diffusion organizations. These rights, while distinct from and generally narrower than copyright, are vital for ensuring that these key players in the cultural and information ecosystem can control and benefit from their efforts in bringing creative content and communications to the public. Understanding this layer of rights is crucial for anyone involved in the music, film, broadcasting, and live performance industries in Japan.