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).

The 50 years term applies to all WTO Members in respect of producers of phonograms as well as artists and performers, as provided in Article 14 of the TRIPS Agreement.

Article 72 of the Law No. 633/1941 provides (according to the EEC Directive No. 92/100) that "the producer of a phonographic record or of any other similar contrivance for reproducing sounds or voices shall have the exclusive right, for the period and under the conditions laid down in the following articles, to reproduce, by whatever duplication process, and distribute the said record or contrivance of his production". Moreover, according to the same article, (paragraph 2) "The producer of a phonogram has also the exclusive right to lease and loans, as well as the right to authorize the lease and loan of the phonograms of his production. This right is not exhausted with the sale or distribution, in whatever form, of the phonograms". According to Article 73 of the same law, "The producer of the phonographic record or of any similar contrivance for reproducing sounds or voices, as well as the artists who interpreted or performed the interpretation or the performance recorded or reproduced on the said contrivances, shall be entitled, independently of the rights of distribution, lease and loan pertaining to them, to remuneration in exchange for the utilization, for purposes of gain, of the record or of the similar contrivance through broadcasting, cinematography, television, in public dancing parties, in public premises and on the occasion of any further public utilization of the said contrivances. The producer shall be entitled to exercise the aforesaid right, and shall share out the remuneration among the artists who acted, interpreted or performed the work". The artists who interpret or perform and the producer of the phonogram which was utilized shall be entitled according to Article 73bis to fair remuneration also when the utilization as per Article 73 was not effected for purposes of gain. According to Article 80 of the Law No. 633/1941 (as modified by Article 13 of the Dlgs No. 685/1994) artists who interpret or perform shall have the exclusive power, regardless of any remuneration to which they may be entitled for their live artistic performances: (a)to authorize recording of their artistic performances; (b)to authorize reproduction, whether direct or indirect, of the recordings of their artistic performances; (c)to authorize broadcasting by air and communication to the public, in whatever form and manner, of their live artistic performances, unless the latter were intended for broadcasting by radio or television or are already the subject or a recording for broadcasting purposes; (d)to authorize distribution of the recordings of their artistic performances; (e)to authorize lease or loan of the recordings of their artistic performances and of the reproduction thereof: The Rome Convention has been ratified by Italy; on June 1995, Italy confirmed some of the reservations already notified, as foreseen by the Convention; among these, the reservation relating to Article 5.3 of the Berne Convention. Consequently, Italy is protecting phonograms on the basis of the criterion of "fixation", this criterion being considered more clear and rigorous compared to the other two criterions of nationality and publication. It should also be remembered that, with Law No. 406 of 5 May 1975, Italy ratified the Geneva Convention for the Protection of Producers of Phonograms against Unauthorized Duplication of their Phonograms.

Under Article 13 of the Italian Copyright Law No. 633/1941, the authors' right of reproduction "has for its object the multiplication of copies of the work by any means". The wording therefore applies to all kinds of reproduction, including those made from broadcasting or by digital means. Article 72 of the law specifically provides the same rule for the reproduction of phonograms. The specific issue as to whether the right of reproduction also includes digital temporary reproduction is still open and under discussion at national and international level.

Article 18 of the Berne Convention reserves the protection to works which at the moment of its coming into force have not yet fallen into the public domain in the country of origin through the expiry of the term of protection. Paragraph 2 of the same article excludes that a work that has fallen into the public domain in the country where the protection is claimed, could be protected anew on the basis of the new terms of the minimal duration of the protection provided for by the Berne Convention. Article 70 of the TRIPS Agreement recalls Article 18 of the Berne Convention so far as the works, phonograms and performances in conformity with the established criteria are concerned, thus implying that the protection must be given to all works which are not fallen into the public domain, as to the neighbouring rights. Article 10.2 of EEC Directive No. 93/98 establishes however that the new long duration of the protection there provided for in favour of copyright and neighbouring rights "applies to any work and subject matter which is protected in at least one of the Member States at the date of 1 July 1995". Article 17 of the Law of 26 February 1996, No. 52 (integrated by Article 9 of the D.L. of 22 June 1996, now being converted into law), actuating such a directive, after having increased the terms of duration of the protection of copyright and neighbouring rights, in conformity with the EEC Directive, has extended the new terms previously into force (Article 17.2), provided always that in application of such terms the aforesaid works and right fall into protection at the date of 29 June 1995 (Article 9.2 of the D.L. No. 331/1996): this means that the protection for neighbouring rights goes back to 30 June 1945 and to 30 June 1926 for copyright.

These aspects will be examined in the second half of 1997.

The compilations of data or other materials that, due to their selection or disposition of their contents constitute intellectual creations, find protection, in terms of "copyright" under the EEC Directive on the legal protection of databases, approved in March 1996. Italian law, at the moment, is protecting the collection, or anthologies of various works already "per se" protected (Articles 3 and 38, and subsequent of the Law No. 633/1941) in conformity with what is provided for by Article 2.5 of the Berne Convention. Italy, however, is obliged to implement the EEC Directive within the terms therein indicated (December 1997) and thus implementation of Article 10 of the TRIPS Agreement shall, of course, be in conformity with what is provided for in the aforesaid EEC Directive.

S.I. No. 158 of 1995 European Communities (Term of Protection of Copyright) Regulations 1995 provides for 50 years protection for phonograms in line with the contents of Council Directive 93/98/EEC harmonizing the term of protection of copyright and certain related rights. The Performers Protection Act 1968 prevents the making of unauthorized records, films and broadcasts of performances. Section 43 of the Copyright Act 1963 confers power on the Irish Government to extend benefit of this Act to other countries. Section 12 of the Performers Protection Act 1968 provides similar powers in respect of performances. Irish law provides protection, inter alia, for phonograms from other WTO Members in the Copyright (Foreign Countries) Order 1996 S.I. No. 36 of 1996 and provides protection for performances in the Performers' Protection (Foreign Countries) (Amendment) Order 1996 S.I. No. 39 of 1996. These Orders extend copyright protection to countries which have ratified or acceded to the Marrakesh Agreement Establishing the World Trade Organization Done at Marrakesh on 15th day of April 1994.

Section 17 of the Irish Copyright Act 1963 provides protection against both the direct and indirect reproduction of phonograms. However, section 13 of the Copyright Act 1963 provides for special exceptions in respect of records of musical works. This is an area which is being carefully looked at in preparing Ireland's new copyright legislation. This new piece of legislation will cover all of Ireland's international obligations. Section 43 of the Copyright Act 1963 confers power on the Irish Government to extend benefit of this Act to other countries. The Copyright (Foreign Countries) Order 1996 S.I. No. 36 of 1996 (which provides, inter alia, protection to phonograms) extends copyright protection to countries which have ratified or acceded to the Marrakesh Agreement Establishing the World Trade Organization Done at Marrakesh on 15th day of April 1994. Digital transmission in the context of interactive services was not part of the negotiations which took place during the establishment of the TRIPS Agreement.

Section 17(4) of the Copyright Act 1963 specifically sets out the acts restricted by copyright in a sound recording. These include reproductions made from a broadcast and, we believe, reproductions resulting from a digital transmission. As regards digital transmissions, this is a matter for interpretation by the Courts and there is no case law to date on this subject matter.