The Japanese Copyright Law provides protection for works, phonograms, performances and broadcasting from other WTO Members. In concrete terms, Articles 6, 7, 8 and 9 respectively provides protection for the works, performances, phonograms and broadcasting which are granted protection under the Japanese Copyright Law. All these provisions cover the works, phonograms, performances and broadcasting from other WTO Members. This protection is provided on the basis of the principle of national treatment required by Articles 3 and 9.1 (incorporating Berne Article 5(1)) of the TRIPS Agreement. Namely, as to works, the Japanese Copyright Law grants to works from other WTO Members all the rights stipulated in the Japanese Copyright Law for Japanese works. As to performers, producers of phonograms and broadcasting organizations, the Japanese Copyright Law grants to performers, producers of phonograms and broadcasting organizations of other WTO Members all the rights stipulated in the TRIPS Agreement in accordance with its Article 3, which provides that "this obligation (national treatment) only applies in respect of the rights provided under this Agreement". The "right to compensation for private recording" stipulated in Articles 30(2) and 104bis of the Japanese Copyright Law is granted to all right owners protected under the Japanese Copyright Law including those in other WTO Members. This legislation does not discriminate between Japanese and foreign right owners, and therefore it does not pose any problem in the light of the principle of national treatment.

The system of Private Recording Compensation was introduced by the amendment to the Japanese Copyright Law in 1992, and started in 1993 (so far only for "sound recording", excluding "visual recording"). The compensation is collected by a collective society called SARAH (Society for the Administration of Remuneration for Audio Home Recording), which began the distribution of compensation money in 1994. The compensation is distributed to three collective societies in Japan, namely those of (1) music copyright owners, (2) performers and (3) producers of phonograms. These Japanese collective societies then distribute a part of the compensation to their overseas counterparts through negotiations and contracts based on the statistical outcomes and data of sampling surveys. We have been informed that the three collective societies have already reached contracts with their overseas counterparts, except for one. Negotiation between the Japanese performers' organization and its counterpart in the United States is still in process.

Article 4 of the TRIPS Agreement provides for the most-favoured-nation treatment with regard to the protection of intellectual property. However, Article 4(b) stipulates that "(any advantage, favour, privilege or immunity) granted in accordance with the provisions of the Berne Convention (1971) or the Rome Convention authorizing that the treatment accorded be a function not of national treatment but of the treatment accorded in another country" are exempted from this obligation. On the other hand, Article 95(3) of the Japanese Copyright Law stipulates the application of reciprocity with respect to the term of the protection for the right to secondary use fees of commercial phonograms of performers. This provision is based on the declaration of reservation which Japan made in accordance with Article 16.1(a)(iv) of the Rome Convention, and therefore, is consistent with Article 4(b) of the TRIPS Agreement. This means that the provision of Article 95(3) is consistent with the TRIPS Agreement.

Article 96 of the Japanese Copyright Law provides for the right of reproduction of producers of phonograms i.e. the right to authorize or prohibit the direct or indirect reproduction of their phonograms required by Article 14.2 of the TRIPS Agreement. This right applies also to the act of reproduction through digital transmission in the context of subscription or interactive services.

The Government of Japan considers it desirable to provide a high level of protection for intellectual property rights and believes 50 year retroactive protection of the rights of performers and producers of phonograms (sound recordings) is appropriate. Therefore, a draft amendment to the Copyright Law is under preparation for submission to the Diet with a view to extending the period of retroactive protection for such rights to 50 years. As to the works originating in WTO Member countries, Japanese Copyright Law protects copyright in the work from its creation to the end of a 50-year period following the author's death. This protection covers, as of 1996, all works the author of which died in and after 1946.

The right to prevent "the reproduction of unauthorized fixations of performances" stipulated in Article 14.1 of the TRIPS Agreement is included in the right provided for in Article 91 of the Japanese Copyright Law. This right in the Japanese Copyright Law is an exclusive right in terms of sound or visual recordings of their performances, and this Article fulfils the obligation under the TRIPS Agreement.

Articles 33 and 34 of the Japanese Copyright Law are not provisions of compulsory licenses but of limitations on copyright entailing the obligation of compensation. Article 33 allows reproduction of works in school textbooks; Article 34 allows broadcasting or wire diffusion of works for school education and reproduction of works in textbooks for such programmes. These acts can be done under the strict condition: "only to the extent deemed necessary for the purpose of school education". Also, in order to provide the authors with chances to exercise their moral rights the user shall announce the use to the author. In addition, the user shall pay compensation to the copyright owner. These provisions have been carefully established and applied under strict interpretation in conformity with Articles 9(2) and 10(2) of the Berne Convention and Article 13 of the TRIPS Agreement.

Both Articles 33 and 34 stipulate the limitation on the permissible use to be "to the extent deemed necessary for the purpose of school education". For example, reproducing or broadcasting a large number of works of the same author or reproducing or broadcasting the whole range of a work (for example, a whole novel) is not deemed necessary. Attention should be drawn to the fact that the permissible reproduction under Article 33 can be done only for school textbooks authorized by the Ministry of Education. In the Japanese school education system, it is required that all textbooks be checked and authorized by the Ministry of Education, and therefore, the "school textbook" in this Article does not mean all books used at school. This means that there is a qualitative limitation in such cases. Also, all textbooks are purchased and given to all elementary and lower secondary school students by the Ministry of Education, which means that there is a quantitative limitation. As to the broadcasting programmes or wire diffusion programmes for school education stipulated in Article 34, attention should be paid to the fact that the permissible broadcastings under Article 34 are those which conform to the national curriculum standard established in detail by the Ministry of Education. Therefore, this Article does not allow all broadcasting for school education so the range of the application of this Article is very limited.

Article 30(1) is the provision which allows a user to reproduce a work by himself for the purpose of his personal use and family use. Article 38 is the provision which permits a user to use a work for non profit purposes under strict conditions in such intangible forms as public performance, recitation, lending and wire diffusion. Article 102 is a similar provision on limitation of neighbouring rights. The Japanese Copyright Law has some provisions of limitations and copyright and neighbouring rights, but all of them include strict and detailed conditions. Therefore, these provisions have been carefully stipulated and strictly interpreted in conformity with the provisions in international treaties such as Article 9(2) of the Berne Convention which allows limitation on reproduction of works "provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author" and Article 13 of the TRIPS Agreement which allows limitations and exceptions.

Both Articles 33 and 34 stipulate the limitation on the permissible use to be "to the extent deemed necessary for the purpose of school education". For example, reproducing or broadcasting a large number of works of the same author or reproducing or broadcasting the whole range of a work (for example, a whole novel) is not deemed necessary. Attention should be drawn to the fact that the permissible reproduction under Article 33 can be done only for school textbooks authorized by the Ministry of Education. In the Japanese school education system, it is required that all textbooks be checked and authorized by the Ministry of Education, and therefore, the "school textbook" in this Article does not mean all books used at school. This means that there is a qualitative limitation in such cases. Also, all textbooks are purchased and given to all elementary and lower secondary school students by the Ministry of Education, which means that there is a quantitative limitation. As to the broadcasting programmes or wire diffusion programmes for school education stipulated in Article 34, attention should be paid to the fact that the permissible broadcastings under Article 34 are those which conform to the national curriculum standard established in detail by the Ministry of Education. Therefore, this Article does not allow all broadcasting for school education so the range of the application of this Article is very limited.

Article 30(1) is the provision which allows a user to reproduce a work by himself for the purpose of his personal use and family use. Article 38 is the provision which permits a user to use a work for non profit purposes under strict conditions in such intangible forms as public performance, recitation, lending and wire diffusion. Article 102 is a similar provision on limitation of neighbouring rights. The Japanese Copyright Law has some provisions of limitations and copyright and neighbouring rights, but all of them include strict and detailed conditions. Therefore, these provisions have been carefully stipulated and strictly interpreted in conformity with the provisions in international treaties such as Article 9(2) of the Berne Convention which allows limitation on reproduction of works "provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author" and Article 13 of the TRIPS Agreement which allows limitations and exceptions.

(i) Article 30(1) -the reproduction has be done by the user himself; -"other similar uses within a limited circle" is strictly applied not to include "friends"; -the number of copies should be limited; -reproduction for profit making purpose is not permissible; -reproduction for the user's business is not permissible even if that business is non profitable. (ii)Article 38(1) Article 38(1) permits public performance of works under some conditions: Firstly, it should be done for non profit making purpose. "Non profit making purpose" does not merely mean "no admission charge", and indirect contribution to profit making is not permissible. For example, free public performance for advertisement, background music in a factory, music played in a hotel lobby are all considered as for "profit making purposes". Secondly, no fee should be charged. "Fee" includes any type of payment including, for example, monthly payment for the membership of a group. Thirdly, the performers should not receive any payment. "Payment" includes all types of money that the performers receive regardless of the denomination. (iii)Article 38(2) Article 38(2) allows wire diffusion of a work already broadcast under some conditions. These conditions are similar to those in Article 38(1), but there is an additional condition i.e. "already broadcast". Because of this condition this paragraph virtually applies only to simultaneous wire diffusion for areas with difficulty in receiving the original broadcasting. (iv)Article 38(3) Article 38(3) allows communication to the public of works already broadcast or wire diffused by a receiving apparatus under certain conditions. Most of the conditions overlap with those in Article 38(1). (v)Article 38(4) Article 38(4) allows lending of works under certain conditions. They are also included in Article 38(1). As a result of such conditions, the lending right of the Japanese Copyright Law virtually becomes the right of commercial rental except for cinematographic works. (vi)Article 38(5) Article 38(5) allows lending of cinematographic works under certain conditions. Some of the conditions overlap with those in Article 38(1). However, this paragraph provides for two additional conditions; firstly the lending has to be done by audiovisual education facilities designated by the Government and secondly, such facilities shall pay compensation.

Article 67 of the Japanese Copyright Law stipulates that the person who wishes to exploit a work which has already been made public but the copyright owner of which cannot be found may lawfully exploit the works under the authorization by a compulsory license issued by the Commissioner of the Agency for Cultural Affairs and upon depositing compensation, the amount of which is fixed by the Commissioner. Article 67 also stipulates that the copies reproduced in such a way must bear an indication to the effect that the reproduction of these copies has been licensed by the Commissioner. Article 68 stipulates that a broadcasting organization may broadcast a work already made public under the authorization by a compulsory license issued by the Commissioner of the Agency for Cultural Affairs and upon paying compensation to the copyright owner, the amount of which is fixed by the Commissioner, provided that the organization cannot reach an agreement in respect of authorization to broadcast the work with the copyright owner through the negotiation. As to Article 67, the condition set out in the Article, which reads "provided that, after due diligence, the copyright owner cannot be found for the reason that he is unknown or for other reasons" is interpreted strictly; for example, when applying for an exploitation based on Article 67, the applicant should submit a document to clarify that he or she could not contact the copyright owner although he or she has made every possible effort. Through the past ten years, only two cases have been accepted based on this provision. As to Article 68, this system has never been used so far.

According to the Japanese Civil Code, an inheritance with no heirs and the like belongs to the National Treasury. However, Article 62 of the Japanese Copyright Law stipulates that copyright with no heirs shall not belong to the National Treasury but expire. This Article has been established because it was considered more desirable to put such works in public domain for free exploitation in order to contribute to cultural development.

The concept of civil penalties does not exist in Japanese legislations. The Civil Code stipulates that, in principle, a sufferer (copyright owner) has the burden of proof with regard to the amount of damage when claiming compensation. However, as it is not easy to prove the amount of damage caused by infringement of copyright, the Japanese Copyright Law has an exceptional provision that turns such burden of proof to the infringer to protect copyright owners. Article 114 of the Copyright Law stipulates as follows: (i)In the case where an owner of copyright, right of publication or neighbouring rights claims compensation for damages from a person who has infringed intentionally or negligently any of these rights, the profits, if any, obtained by the infringer from that infringement shall be presumed to be the amount of damages suffered by such an owner. (ii)The owners of copyright and neighbouring rights may claim compensation for damages from a person who has infringed intentionally or negligently their copyright or neighbouring rights, the amount of damages suffered being that corresponding to the ordinary amount of money which would be received by them through the exercise of these rights. (iii)The provision of the preceding paragraph shall not prejudice any claim to compensation for damages in excess of the amount mentioned therein. In such case, the court may take into consideration the absence of any bad faith or gross negligence on the part of the infringer in fixing the amount of damages.

(1) Article 114 of the Copyright Law stipulates the presumption of the amount of damages caused by infringements and corresponds adequately to Article 45 of the TRIPS Agreement which stipulates "damages". Article 112 of the Copyright Law provides for the right of demanding cessation against infringements and corresponds adequately to Article 46 of the TRIPS Agreement which stipulates "other remedies". Furthermore, Article 119 of the Copyright Law provides for penal punishments against infringements and corresponds adequately to Article 61 of the TRIPS Agreement. Article 112(2) of the Copyright Law provides for the seizure and the destruction of infringing articles and equipment used to make the infringing articles and Article 19 of the Penal Code provides for forfeiture. (2) A copyright owner may claim civil remedies, such as compensation by filing a civil case to the court against a person who infringed his/her copyright. The outline of the procedure in regard to the provisional measures is as follows: The procedure for the provisional measures is initiated by the request of a party concerned. Following the hearings from the party (or both parties), the court determines whether the legal requirements for adopting the provisional measure are met. If the court determines to adopt the measure, the order of preservative measure is served on the defendant. The defendant may request the court the annulment of the order by raising of an objection. In addition, based on the request from the defendant, the court which issued the order shall fix a certain reasonable period and require the applicant: (i)to file the case on the merits and to provide written evidence of filing the case on the merits within such period. (ii)to provide written evidence of pendency of case within such period, if the case is already filed. In case the applicant fails to provide such evidence within the required period, the defendant may request the court the annulment of the order of preservative measure.

(i) As for ex parte injunctive relief, the Code of Civil Preservative Procedures provides for "provisional orders regarding objects concerned" and "provisional orders deciding a provisional status" as provisional measures which courts may order. (ii) The provisional order regarding objects concerned may be issued where a court concludes there is a possibility that the applicant would not be able to exercise, or would come to face extreme difficulties in exercising, its right because of a change in the situation of such objects (Article 23.1 of the Japanese Code of Civil Preservative Procedures). It is not always necessary for the court to give an opportunity to the adverse party to present its opinion prior to the issuance of provisional order. (On the other hand, a court shall hold a hearing which both parties concerned may attend before the court renders decision of injunction as the final measure.) (iii) The provisional order deciding a provisional status may be issued where a court concludes that such an order is necessary for avoiding extreme damage or imminent danger which the applicant would suffer regarding the legal relations at issue (Article 23.2 of the Japanese Code of Civil Preservative Procedures). In principle, the court shall hold a hearing or interrogation which the adverse party may attend prior to the issuance of the order. However, where the court considers it would be impossible to accomplish the purpose of the request for the provisional order if it held such a hearing or interrogation, the court may issue the provisional measure without holding the hearing or interrogation (Article 23.4 of the Japanese Code of Civil Preservative Procedures). (iv) As for the number of cases in which injunctive relief is requested based on copyright, and the length of time necessary to complete the procedures, statistics are not available, and we do not have specific figures. However, it is our recognition that this system is functioning well.

In respect of copyright and those related rights provided for in Section 1 of Part II of the TRIPS Agreement, copyright works (and in UK law phonograms are treated as a category of copyright work) from other countries and foreign performances are given the same protection as works and performances of UK origin thus satisfying the national treatment requirements of Articles 3 and 9.1. UK copyright law is applied to works from other countries by orders made under Section 159 of the Copyright, Designs and Patents Act 1988; performers from countries designated in orders made under Section 208 of that Act enjoy protection in respect of their performances. The Copyright (Application to Other Countries) (Amendment) Order 1995 (SI 1995 No. 2987) and the Performances (Reciprocal Protection) (Convention Countries) Order 1995 (SI 1995 No. 2990) made under these Sections respectively gave effect to the UK's obligation to other WTO countries from 1 January 1996 where these obligations were not already met by existing Orders implementing the UK's obligations under other international copyright conventions or otherwise. UK copyright law has no provisions relating to the distribution of levies for private copying.

The private copying levies are paid to the SIAE, which distributes them among authors' and producers' associations; the producers' associations share out 50 per cent of the proceeds they have collected to artists' and performers' associations. There is no discrimination between Italian and foreign rightholders.

The term of protection of the rights of performers, producers of phonograms, etc. has been extended to 50 years by Law No. 52 of February 1996, Article 17 (amended by Article 9 of D.L. No. 331 of 22 June 1996 which is being converted into law); Law No. 52 has enforced the EEC Directive No. 93/98 (Articles 3, 1 and 2).