Neighboring Rights in Japan: Protecting Performers, Producers, and Broadcasters Beyond Copyright
While copyright law primarily safeguards the creators of original literary, artistic, and musical works, the journey of these works to the public often involves the crucial contributions of other parties. Performers bring scores and scripts to life, phonogram producers capture these performances in lasting recordings, and broadcasting organizations disseminate them to a wide audience. Recognizing the creative, technical, and financial investments made by these entities, Japanese copyright law provides a distinct layer of protection known as chosaku rinsetsuken (著作隣接権), or "neighboring rights" (sometimes translated as "rights neighboring on copyright"). These rights exist independently of, yet alongside, the copyright in the underlying works themselves.
This article explores the framework of neighboring rights in Japan, identifying who benefits from them and the scope of protection afforded.
The "Why" and "What" of Neighboring Rights in Japan
The rationale behind establishing neighboring rights is to acknowledge and incentivize the contributions of those who are instrumental in the dissemination and public presentation of copyrighted works. Performers infuse works with their unique interpretations and skills; phonogram producers invest significantly in the technical and artistic aspects of sound recording; and broadcasters undertake substantial financial and organizational efforts to transmit content. Without legal protection for their contributions, the incentive to invest in these vital activities could diminish, ultimately hindering cultural development.
Under Article 89 of the Japanese Copyright Act, four categories of beneficiaries are granted neighboring rights:
- Performers (実演家 - jitsuenka)
- Producers of Phonograms (レコード製作者 - rekōdo seisakusha)
- Broadcasting Organizations (放送事業者 - hōsō jigyōsha)
- Wire-Broadcasting Organizations (有線放送事業者 - yūsen hōsō jigyōsha)
A key characteristic of neighboring rights is their independence from the copyright in the work being performed, recorded, or broadcast. For example, obtaining a license to use a musical composition (the copyright in the song) does not automatically grant the right to use a specific recording of that song (which involves the performer's and phonogram producer's neighboring rights). Conversely, clearing neighboring rights does not negate the need to clear the copyright in the underlying work.
Similar to copyright in Japan, neighboring rights arise automatically upon the qualifying act—be it the performance, the first fixation of sounds onto a phonogram, the broadcast, or the wire broadcast. No formal registration or other formalities are required for these rights to come into existence (Article 89, Paragraph 5; Article 101, Paragraph 1).
The duration of protection for neighboring rights, as stipulated in Article 101, Paragraph 2, is generally 50 years.
- For performers, the 50-year term is calculated from the year following the year in which the performance took place.
- For producers of phonograms, the 50-year term is calculated from the year following the year of the first publication of the phonogram. If the phonogram is not published within 50 years from its first fixation, the term is 50 years from the year following the fixation. The choice of "publication" as the trigger point for published phonograms aids in administrative convenience, especially for albums containing recordings made at different times.
- For broadcasting organizations and wire-broadcasting organizations, the 50-year term runs from the year following the year in which the broadcast or wire broadcast took place.
(It should be noted that international agreements like the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP), to which Japan is a party, have led to discussions and legislative changes in some member countries to extend the term of protection for phonograms and performances fixed therein to 70 years. Users should verify the most current term in light of such developments, though this article reflects the longstanding 50-year term under the Copyright Act as detailed in foundational legal commentaries).
1. Rights of Performers (実演家 - jitsuenka)
Performers are central to bringing many copyrighted works to an audience.
Definition of "Performance" and "Performer":
A "performance" (jitsuen) is defined in Article 2, Paragraph 1, Item (iii) as the act of theatrically acting, dancing, musically playing, singing, narrating, declaiming, or otherwise performing a work. Importantly, it also includes "similar acts which have a performing arts nature" (geinōteki na seishitsu o yūsuru), even if they are not based on a pre-existing copyrightable work. This can encompass performances like magic shows, acrobatics, or stand-up comedy. However, activities like sports competitions are generally not considered "performances" under this definition.
A "performer" (jitsuenka), as per Article 2, Paragraph 1, Item (iv), includes not only those who actually carry out the performance but also those who conduct or direct such performances, such as orchestra conductors and stage directors.
Performers' Economic Rights:
Japanese law grants performers several exclusive economic rights:
- Right of Sound and Visual Recording (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 means that permission is required to record a concert, play, or other live event.
- The "One-Chance Principle" (ワン・チャンス主義 - wan chansu shugi) for Cinematographic Works: A significant limitation applies when a performer consents to their performance being recorded for inclusion in a cinematographic work (e.g., a film or television program). In such cases, the performer's right of sound/visual recording under Article 91 generally does not extend to subsequent reproductions of that specific cinematographic work (e.g., making DVD copies of a film for which the performer consented to be filmed). This principle is designed to facilitate the distribution and exploitation of films, which often involve numerous performers, by streamlining rights clearance for the film product itself. However, this "one-chance" limitation does not apply if the performance is extracted from the film to create a separate sound-only phonogram (like a soundtrack CD) or if the performance is used in a different cinematographic work. The nuances become particularly complex for performances originally recorded for television broadcast that are later commercialized on DVD, as the initial consent might have been limited to broadcasting, potentially leaving room for the performer to assert recording rights for other forms of reproduction.
- Right of Broadcasting and Wire Transmission (Article 92): Performers have the exclusive right to broadcast or transmit by wire their live (unfixed) performances.
- However, this exclusive right does not apply if the performance has already been recorded (fixed) with the performer's authorization (Article 92, Paragraph 2, Item (i)). Instead, for performances fixed on commercial phonograms (e.g., commercially released CDs), performers are entitled to receive secondary use fees when these phonograms are broadcast or wire-transmitted by broadcasting organizations (Article 95, Paragraph 1). They do not have the right to prohibit such broadcasts.
- Right of Making Transmittable (送信可能化権 - sōshin kanōkaken) (Article 92bis): This is a crucial right in the digital age, granting performers the exclusive right to make their performances (whether live or fixed in recordings) available to the public via the internet, for example, by uploading them to a server for on-demand streaming or download.
- The "one-chance principle" also limits this right for performances fixed in authorized cinematographic works; the performer generally cannot control the online transmission of the film itself if they consented to its making (Article 92bis, Paragraph 2).
- Right of Transfer of Ownership (譲渡権 - jōtoken) (Article 95bis): Performers have the exclusive right to offer copies of their fixed performances (specifically, those fixed on phonograms, but not typically those fixed in cinematographic works) to the public by transfer of ownership (e.g., selling CDs). This right is subject to the principle of exhaustion after the first authorized sale within Japan.
- Right of Rental for Commercial Phonograms (貸与権 - taiyoken) (Article 95ter): For commercial phonograms embodying their performances, performers have an exclusive right to authorize their rental to the public for a period of 12 months from the date of their first sale. After this 12-month period, the exclusive right converts into a right to receive remuneration from rental businesses.
Performers' Moral Rights (実演家人格権 - jitsuenka jinkakuken):
Distinct from their economic rights, performers also possess moral rights, which are personal and inalienable:
- Right of Attribution (Name Indication) (Article 90bis): The right to decide whether and how their name is indicated in connection with their performance.
- Right to Integrity (Article 90ter): The right to object to modifications or distortions of their performance that would be prejudicial to their honor or reputation. (Note: This is typically a higher threshold to meet than an author's right to integrity for their work).
Unlike authors, performers are not explicitly granted a "right of making public" for their unfixed performances, as performances are often inherently public or their fixation is controlled by the recording rights.
2. Rights of Producers of Phonograms (レコード製作者 - rekōdo seisakusha)
Producers of phonograms play a key role in creating and disseminating sound recordings.
Definition of "Phonogram" and "Producer of Phonograms":
A "phonogram" (rekōdo) is defined in Article 2, Paragraph 1, Item (v) as any fixation of sounds on a tangible medium (e.g., CDs, vinyl records, digital audio files), but it excludes recordings that are primarily incorporated as the soundtrack of a cinematographic work. The sounds fixed do not need to be musical or based on a copyrighted work; recordings of natural sounds like birdsong can also qualify as phonograms.
The "producer of a phonogram," according to Article 2, Paragraph 1, Item (vi), is the person who first fixes the sounds that constitute the phonogram. This is generally interpreted to mean the entity that takes the initiative and bears the financial and organizational responsibility for making the first master recording, rather than, for example, the sound engineer who physically operates the recording equipment. This was affirmed in a Tokyo District Court decision on January 19, 2007 (concerning the band THE BOOM).
Phonogram Producers' Economic Rights:
- Right of Reproduction (Article 96): Producers have the exclusive right to reproduce their phonograms (e.g., manufacturing CDs from a master recording, copying digital audio files).
- Right of Making Transmittable (Article 96bis): The exclusive right to make their phonograms available to the public online.
- Right of Transfer of Ownership (Article 97bis): The exclusive right to offer copies of their phonograms to the public by transfer of ownership (e.g., selling CDs). This right is also subject to exhaustion after the first authorized sale in Japan.
- Right of Rental for Commercial Phonograms (Article 97ter): Similar to performers, producers have an exclusive right to authorize the rental of their commercial phonograms for 12 months from first sale, which then converts to a right to remuneration.
- Right to Secondary Use Fees (Article 97): When commercial phonograms are broadcast or wire-transmitted, producers are entitled to receive remuneration from the broadcasters/wire-broadcasters. This right is typically exercised jointly with performers through collecting societies. Phonogram producers do not have an exclusive right to authorize or prohibit the broadcasting of their commercial phonograms.
3. Rights of Broadcasting Organizations (放送事業者 - hōsō jigyōsha)
Broadcasting organizations are granted rights in their broadcast signals.
Definition of "Broadcast" and "Broadcasting Organization":
A "broadcast" (hōsō) is a public transmission by wireless means intended for simultaneous reception by the public (Article 2, Paragraph 1, Item (viii)). A "broadcasting organization" is an entity that conducts broadcasting as a business (Article 2, Paragraph 1, Item (ix)). Their protected subject matter is the broadcast signal itself, carrying the sounds and images, rather than the underlying content of the programs (which may be protected by separate copyrights or performers' rights).
Broadcasters' Economic Rights:
- Right of Reproduction (Article 98): The exclusive right to make sound or visual recordings of their broadcasts (or of wire retransmissions of their broadcasts) and to reproduce such recordings from those recordings.
- Right of Rebroadcast and Wire Transmission (Article 99): The exclusive right to authorize the rebroadcast (simultaneous wireless retransmission by another broadcaster) or the wire retransmission (e.g., by a cable operator) of their broadcasts. This is subject to certain exceptions, such as compulsory licensing for cable retransmission in areas with poor over-the-air reception, as mandated by broadcasting law.
- Right of Making Transmittable (Article 99bis): The exclusive right to make their broadcasts (or wire retransmissions thereof) available online as they are being broadcast. This right pertains to the real-time signal, not generally to recordings of past broadcasts (the making available of which would be covered by the reproduction right and then the copyright/performer's rights in the program content).
- Right of Communication of Television Broadcasts (Article 100): The exclusive right to communicate their television broadcasts to the public by means of special apparatus for enlarging images (e.g., public viewing of sports events on large screens in venues).
4. Rights of Wire-Broadcasting Organizations (有線放送事業者 - yūsen hōsō jigyōsha)
Wire-broadcasting organizations (e.g., cable television and cable radio operators) have rights that largely mirror those of over-the-air broadcasters but pertain to their original wire broadcasts.
Definition of "Wire Broadcast" and "Wire-Broadcasting Organization":
A "wire broadcast" (yūsen hōsō) is a public transmission by wire intended for simultaneous reception by the public (Article 2, Paragraph 1, Item (ix-2)). A "wire-broadcasting organization" conducts this as a business (Article 2, Paragraph 1, Item (ix-3)).
Their rights (Articles 100bis to 100quinquies) include rights of reproduction, re-wire-transmission (and broadcasting), making transmittable, and communication of their television wire broadcasts to the public on large screens. These rights apply to their originally produced and transmitted programs, not to the mere retransmission of over-the-air broadcasts (as the rights in those signals belong to the original over-the-air broadcaster).
Interplay and Comparison with U.S. Law
The Japanese system of neighboring rights creates a multi-layered rights environment. Users of content, especially in commercial settings, often need to clear rights not only from the author of the underlying work (e.g., the composer of a song) but also from the performer(s) and the phonogram producer if using a specific recording, and potentially from a broadcaster if using broadcast material. These neighboring rights are also subject to limitations analogous to those for copyright, such as for private use or quotation (Article 102).
This comprehensive statutory framework for neighboring rights differs significantly from U.S. copyright law:
- No Unified "Neighboring Rights" Category: The U.S. does not have a distinct, overarching legal category termed "neighboring rights." Protections for performers, record producers, and broadcasters are found in different parts of copyright law, contract law, or specific statutes.
- Performers: In the U.S., performers generally do not possess a federal copyright in their live, unfixed performances as such. Their protection often stems from contractual arrangements, union agreements (e.g., SAG-AFTRA, AFM), or state-level rights of publicity. There are specific federal anti-bootlegging statutes for live musical performances (17 U.S.C. § 1101) and a limited digital public performance right for featured recording artists whose sound recordings are transmitted digitally.
- Producers of Phonograms (Sound Recordings): Under U.S. law, sound recordings are a distinct category of copyrightable works (17 U.S.C. § 102(a)(7)). The "author" of the sound recording (often the producer, or sometimes the performing artist under a work-for-hire agreement or by assignment) owns the copyright in the sound recording itself. This grants exclusive rights of reproduction, distribution, creation of derivative works based on the sound recording, and a limited public performance right applicable only to digital audio transmissions. There is no general broadcasting right or rental right for sound recordings equivalent to what Japanese phonogram producers enjoy.
- Broadcasters: U.S. broadcasters do not have a separate "neighboring right" in their broadcast signals. They own copyright in the original programs they create. The retransmission of their signals by cable or satellite operators is governed by complex compulsory licensing schemes and FCC regulations.
These differences are particularly relevant in international licensing and for ensuring comprehensive rights clearance when content created under one system is used in the other. Japan's adherence to international treaties like the Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations provides a basis for the international recognition and enforcement of these neighboring rights.
Conclusion
Neighboring rights in Japan play a vital role in the creative ecosystem by providing essential legal protections to performers, phonogram producers, and broadcasting entities. These rights, while "neighboring" copyright, are distinct and operate in parallel, creating a complex but comprehensive framework. For anyone involved in the creation, production, dissemination, or commercial use of performances, sound recordings, and broadcasts in Japan, a thorough understanding of this multi-layered rights structure is indispensable for ensuring legal compliance and fostering fair compensation for all contributors to the cultural landscape.