Tokyo District Court Judgment Against Scanning Business

I already talked about the discussion on the scanning companies and the copyright.

On September 30, 2013, the first judgment on this issue was rendered, which is a victory of the authors and the defeat of the scanning companies.

The plaintiffs are popular novel writers and manga artists. The two defendants are the companies providing scanning business. Upon request of the customers, the defendants scan the books for them and deliver the pdf files of the books in return for some (usually cheap) fee. The defendants have not gotten any permission from the authors including the plaintiffs. The plaintiff’s argument is very simple. The defendants copied the plaintiffs’ books without their permission and it is an infringement of the plaintiffs’ copyright.

The defendants’ argument is that it is the customers of the defendants who do the copying, and the scanning companies are just assisting them.  In Japan, if it is a private use, copying or other activities are exempted (Article 30 of the Copyright Act). So, the defendants argue that it is the private use of the customers and the defendants are just providing some assistance to the customers. The court did not buy the argument. The court referred to a controversial Supreme Court judgment, which said that a Cablevision/Aereo like system is in violation of the Japanese copyright Act (TV Broadcasting Companies v. Japan Digital Kaden, 65-1 Minshu, 399, January 20, 2011). Based on the logic of the Supreme Court judgment, Tokyo district court found that as the important aspects of scanning is conducted by the scanning company, it is the defendants that conduct the copying, not the customers of the defendants.  As a result, the court judged for the plaintiff.

There are two points that should be taken into account. First, the Supreme Court judgment, which the Tokyo district court relied upon, is not popular. If taken literary, the Supreme Court judgment is virtually saying that as the cloud service is the “copying” conducted by the cloud service providers, it is a copyright infringement. So, many scholars are arguing to limit the application of the Supreme Court judgment and some simply say that the judgment is wrong.

Another issue is that not all authors are hostile against the scanning business. I already reported the movement of friendly negotiation in my article.  Also, recently, authors of one of the thickest books on Japanese Copyright (Commentary of the Copyright Law) explicitly admitted the users to use scanning business. So, even though this is a very bad news for the scanning companies, still, there are many scenarios on the future of the scanning business.

 DISCLAIMER: "IT Law issues in Japan" only provides general information about Japanese information technology law and does not, under any circumstances, constitute legal advice. You should first obtain the advice of professional legal counsel who is qualified in Japan before acting or refraining from acting based on this blog.

SUICA scandal and the privacy in the era of Big Data

Recently, East Japan Railways Company (JR), oneof the biggest companies in Japan apologized for the sales of the data of its consumers. 

JR manages a system of electronic money called SUICA, which started from an electronic ticket for JR’s trains but now is one of the strongest electronic money widely used all over Japan. 

Recently, JR announced that JR and its partner company would sell the marketing report based on the data of SUICA users on (1) which station they get on and get off, (2) when they used the train, (3) how old they are, and (4) their gender.  For this purpose, JR gives the anonymized data of SUICA users to its partner company.  At first, JR got no consent from the users. There was no opt-in nor opt-out for the sale of their data.  When the announcement was made, there are many people opposing the usage, claiming that the sales of user data are an invasion of users’ privacy.

From the viewpoint of the Act on the Protection of Personal Information, which aims to protect personal information, JR may make an argument that it is not violating the Act. The act generally prohibits the transfer of personal information without obtaining the consent. But it is understood that the personal information defined does not include the anonymized information.

However, the fear of the users is that, many people are now using SUICA as their primary means of payment (partly because of SUICA point system whereby some percentages of the purchase are refunded), the log of the SUICA usage is a kind of life-log.  Whereas SUICA data can include sensitive information such as the purchase of certain kinds of books and magazines, it is sometimes possible to identify an individual by a sophisticated analysis of the life-log like data. Finally, JR apologized and offered an opt-out procedure.

It reminds me of the sentence in Viktor Mayer-Schonberger’s recent book “Big Data.” The book argued that the current concept of privacy is out of date in the era of Big Data. At least, one lesson is that companies dealing with Japanese customers which are collecting life-log like data ( including electronic money), must be very careful about its reputation risk when they “sell” user’s information even if they are anonymized.

DISCLAIMER: "IT Law issues in Japan" only provides general information about Japanese information technology law and does not, under any circumstances, constitute legal advice. You should first obtain the advice of professional legal counsel who is qualified in Japan before acting or refraining from acting based on this blog.

The First “Internet Election” in Japan

The Japanese election system is full of restrictions.  Public Offices Election Act (“Act”) stipulates detailed dos and don'ts. Some of them are as follows:

• Election campaign, or the activity for the purpose of collecting votes for a certain candidate at a certain election, may only be conducted within 17-day (House of Councilors) or 12-day (House of Representatives) campaign period before the election.

• The usage of documents and drawings for the purpose of the campaign is not allowed unless specified by the Act. Some of the “permitted” documents are brochures, posters and mails.  But the number of brochures a candidate may use is determined by the Act. The number and the place of plastering posters are determined by the Act. And the number of mails a candidate may send is determined by the Act.

• No door-to-door visits are allowed.

• No seasons greeting cards by the candidate or the Diet members (with a small exception).

• The ways a candidate may use campaign truck for the campaign are stipulated in the Act in detail.

• High nomination deposit (around $30,000).

• No minors may engage in the election campaign.

Before 2013, the usage of the Internet is also one of the banned items in the list above. The administrative interpretation of the act is that as the Internet is a means of disseminating the information, the general ban of “documents and drawings” is applicable. Without any specific clause in the Act to allow the usage of the Internet, it is interpreted that the Internet is not the tool that can be used for the campaign. What happened is that while candidates and Diet members generally uses the Internet, such as webpage and SNSs, they suddenly stop updating the webpage or the wall when the election campaign period starts.

However, for many Japanese people, the Internet is a very basic infrastructure. It is very odd in this digital age to ban the usage of the Internet for the election campaign.  Also, some people argued that the usage of the Internet in the election campaign can contribute to the democracy in Japan, since even a poor candidate may be able to get elected by efficiently using the Internet, especially the Social Networking Sites.

This year, the Act was amended so that some usage of the Internet for the campaign was allowed. The coming election for the House of Councils is the first “Internet Election” and the campaign period starts on July 4, 2013.

 

 Basically, there are the regulation for emails and other means of the Internet. Regarding the emails, only the candidates and the parties may send emails for the campaign. This means that supporters shall not send any email for the election campaign. When candidates and parties send emails, there are some obligations such as to clearly indicate the name of the sender and sender’s address. Also, the senders must preserve the record of the email for a certain period of time. 

On other means of the Internet, not only the candidates and the parties but also anyone (such as supporters) may use the Internet for the campaign. But in such case, there are some obligations such as to clearly state the email address of the author.

There are some practical problems basically attributable to the fact that the Act did not make any changes in other restrictions. For example, we cannot print out the campaign website and distribute it. The reason is that it is the violation of the general prohibition of the usage of documents and drawings for the purpose of campaign. Also, a minor’s retweet or the liking of the campaign tweet/post may constitute an illegal engagement in the election campaign by minors. But I doubt that these important issues are widely known by the Internet users. 

Therefore I hope that the government makes a stronger effort to announce these problematic issues so that there would be no major troubles in this first “Internet Election.” I also hope that the government may treat “innocent mistakes” (especially those made by non-candidates) generously.

DISCLAIMER: "IT Law issues in Japan" only provides general information about Japanese information technology law and does not, under any circumstances, constitute legal advice. You should first obtain the advice of professional legal counsel who is qualified in Japan before acting or refraining from acting based on this blog.

Governmental Monitoring in Japan - PRISM Scandal?

As the PRISM scandal struck the U.S., there is a controversy over whether or to what extent the government may monitor private activities especially the ones online. The scandal is also widely broadcasted in Japan and last Tuesday, my friend (who is an associate professor at Chuo University) was interviewed live by a Japanese TV show. In Japan, there are two important issues regarding governmental monitoring of private activities.

First, there is a famous scandal of Tokyo Metropolitan Police Department Public Security Bureau. In late 2010, the bureau’s documents on alleged “terrorists” were somehow uploaded to a peer-to-peer network. What struck the Japanese society, especially foreigners residing in Japan, was that the police regarded the Muslim community in Japan as an organization in close connection with terrorists.  After the documents were disclosed, many protests occurred and finally, the police admitted that the information in the documents was the police information. This scandal reminded us how close and constant the police are monitoring us.

Second, another issue is the amendment of the Code of Criminal Procedure in 2011 (introduction of the Article 197-3) by which the police may ask information companies for the preservation of the data of a certain individual. This means that the police may ask for Facebook to preserve the communication log between User A and User B for 30 days and Facebook would have the obligation to comply with the request. Some opponents of the amendment called this a “cyber monitoring law.” 

It is difficult to tell whether it is a cyber monitoring law or not but one thing that is certain is that what this amendment enabled the police to ask is the preservation of past data not the retention of current and future data.  This means that currently the degree of the privacy invasion by the 2011 amendment is not very wide and strong. But we need to be careful about (1) whether the police may abuse the new authority to ask for retention and (2) whether the government will amend the code further to enable the police to ask for preservation, which would be more problematic than mere retention.

DISCLAIMER: "IT Law issues in Japan" only provides general information about Japanese information technology law and does not, under any circumstances, constitute legal advice. You should first obtain the advice of professional legal counsel who is qualified in Japan before acting or refraining from acting based on this blog.

Open Access in Japan II

To my delight, my previous article, Open Access in Japan was widely read by many who are interested in Open Access (such DigitalKoans and Open Science Federation).  Recently, as a lawyer and a writer at law journals, I personally made one small step toward open access. 

As already written in my previous article, one of my articles has already become open access, as of last year. My article on criminal law was accepted by a university journal (Kiyo). The university journal had a policy of open access and uploaded my article in its institutional repository (where all articles are uploaded). But what happens to the journals which do not have such an open access policy?

Early this month, another article of mine regarding a circular transaction (a kind of transaction conducted for the purpose of window dressing which is often seen in the information technology industry in Japan) was published in a reputable commercial journal. However, the journal does not have an open access policy. This means that in order to read my article, one should either subscribe to the journal or buy that issue of the journal.

After the article was published, the editor sent me the issue of the journal. I read my article and found an error in my article. During the editing process, I already asked the editor to correct that error, but the editor failed to do so by mistake. I asked the editor whether it is possible to correct the error, to which he said no because the journal was already published (with a sincere apology). Then, it occurred to me that this would be a "chance" for my personal open access movement. I asked the editor whether I can obtain a PDF file of the corrected version of my article and self archive it at my law firm's website. I was not sure whether the editor would say yes, because that journal has no history of self archiving by its writers as far as I know. But luckily, the editor agreed to my request. Yesterday, with the kind assistance from my law firm's partner, who is in charge of running the firm's website, my article was finally uploaded on my law firm's website. 

I need to note that my case has some favorable aspects from the viewpoint of open access. My request for the self-archive has a relatively strong reason even for the journal. Through my self-archive, the readers of the journal who wish to read the corrected version of the article can now obtain it. This is different from most cases where an author asks the journal for self-archive. However, I am happy to "pioneer" (as far as I know) self-archiving of the article published in that reputable commercial journal. I know some scholars who are pioneering self-archiving their articles published in other commercial journals. I hope that the actions of these (currently small number of) lawyers (hopefully including me) will become a big movement toward open access in Japan.

DISCLAIMER: "IT Law issues in Japan" only provides general information about Japanese information technology law and does not, under any circumstances, constitute legal advice. You should first obtain the advice of professional legal counsel who is qualified in Japan before acting or refraining from acting based on this blog.

Heated Battle between Human and Computer on Shogi

April 20, 2013 can be a special day for Shogi (Japanese Chess) fans and computer science researchers. This is the day of a battle of Shogi equivalent to the chess match between Garry Kasparov and Deep Blue when a computer chess machine defeated the chess champion. From last month there has been a five-game match between professional Shogi players and computers and April 20 is the day of the last match.

The history of computer Shogi is not short. Even Nintendo's original Family Computer had a Shogi game. However, artificial intelligences (AIs) have been considered to be weak. One important moment was March 21, 2007, when Akira Watanabe, the title holder of Ryuo (Dragon King) had a match with a computer software Bonanza. Although Ryuo Watanabe won the game, he acknowledged the strength of Bonanza, saying, "I should admit that (the level of computer Shogi) is just below the level of professional Shogi players."

Then, Japan Shogi Association ("JSA") banned professional Shogi players from officially battling against the computer. In 2010, the Information Processing Society of Japan (IPSJ) sent a letter of challenge, asking to fight against professional Shogi players. JSA first offered to fight against a professional female champion who is regarded as one the strongest female Shogi players in Japan. (Note that (although I do not know why but) female professional Shogi players are generally weaker than male professional Shogi players.) The computer software called "Bonklers" defeated the woman champion.

As a result, five matches in a row are being held to decide which is stronger. The five strongest Shogi playing AIs were selected based on the result of World Computer Shogi Championships. JSA selected, three young professional Shogi players, one ex-title holder and one top player.

The result so far has been surprising. In the first battle, a young professional player defeated the software after thorough preparation, using the software provided by the developer. But on the second and third battle, although both parties seemed to have chances to win, the computer defeated professional players, making use of the professional players' mistakes. So, the first three battle was 2 to 1 for the computers. Another defeat means that humans are weaker than computers.

On April 13, 2013, Yasuaki Tsukada, the ex-title holder battled against Puella α, the descendent of Bonanza (matched against Ryuo Watanabe). To be objective, Tsukada has been out of the "top ten professional Shogi players" for more than 15 years. And as expected, the first half of the match was at the computer's pace. Tsukada lost most of his important pieces and virtually all the viewers believed his defeat. However, he never gave up. Under the rule of Shogi, when the game continues for a very long time and it is difficult for either party to check the kings, parties are entitled to draw the match under a certain condition. Tsukada, finding a narrow hope of satisfying such a condition, continued to play for nearly ten hours and finally satisfied the condition to draw the game. Tsukada's fighting spirit moved many viewers.

On April 20, 2013, Hiroyuki Miura plays a match against GPS Shogi. A defeat would mean the defeat of humans against computers in two ways. First, a defeat would mean 3 to 1 (with one tie) for computers in this five-games-in-row match. Second, as Miura is one of the ten top professional players, a defeat would mean that computers are stronger than the top players. The match is broadcasted through an internet broadcast website, Niconico. No Shogi fans and computer science researchers interested in artificial intelligence can miss it!

April 20: Mr. Miura lost. GPS Shogi won and one may be able to say that it was demonstrated that humans are weaker than computers.

DISCLAIMER: "IT Law issues in Japan" only provides general information about Japanese information technology law and does not, under any circumstances, constitute legal advice. You should first obtain the advice of professional legal counsel who is qualified in Japan before acting or refraining from acting based on this blog.