As one of its numerous
activities, The Japanese Society for Rights of Authors, Composers and
Publishers (JASRAC) licenses the right to play, use, broadcast (generally
within the confines of the business having a license), etc., copyrighted music
to businesses willing to pay royalties to JASRAC which was established in 1939
and at present controls approximately 98% of copyrights related to music in
Japan. While the royalty payment system has been traditionally applied to commercial
businesses such as restaurants, cafes, clothing stores, etc., JASRAC has
recently sought to obtain royalties from music and dance schools which, along
with other attempts to collect royalties which may extend beyond their legal
scope or attempts to redefine the terms used in the Copyright Law, has drawn
much scrutiny.
According to the Japanese
Copyright Law, a copyright shall remain effective for 50 years after the owner
of the copyright (often the composer, author, etc) has passed away.
The author or
composer of a work in question is provided with the exclusive right (referred
to as a “performance right”) to perform or release the work in question to the
public. The concept of “fair use” of art is rather limited in Japan, where
copyright is viewed as a rule and not a standard in which some wiggle room
exists for society or the courts to interpret whether such a performance of a
musical piece constitutes a public performance requiring payment of royalties
to the author or composer of the work in question. Japanese courts tend to
judge such cases with a “one size fits all” mentality and often do not consider
extenuating circumstances or situations in which a strict interpretation of the
law may be unwarranted.
Defining
“Performance”
In February 2017,
JASRAC requested1 that music schools remit royalty payments
equivalent to 2.5% of the lesson fees collected by the schools. These fees
would apply not simply to public recitals in which students or people
affiliated with the music school performed copyrighted pieces publicly, but
also to private lessons or practice regardless of whether anyone other than the
music teacher and the student were present at the school at the time. In short, any use whatsoever of a
musical piece for which JASRAC holds the copyright would require payment.
In September
2017, initial hearings commenced at the Tokyo District Court into this
matter. Lawyers representing music
schools (Yamaha Music Foundation, Kawai Musical Instruments Manufacturing,
etc.) indicated that a music lesson does not constitute a public “performance”
as the lesson is not performed directly for the public2. This
concept derives from the language used in the Copyright Law but what actually
constitutes a “public performance” is not specifically defined therein. JASRAC’s representatives argued that the
term “performance” could be expanded to include any use of any copyrighted
piece.
Since the start
of this lawsuit, numerous Japanese musicians have expressed their desire that
music schools be allowed to freely use their music for lessons and non-public,
not-for-profit performances, in order to maintain and stimulate an interest in
the musical arts, especially musical education for children.
JASRAC, while
ostensibly seeking to serve the good of musicians attempting to earn a living
from their creativity, has a history of vague enforcement policies and has been
known to “test the waters” to see whether they can obtain new revenue streams.
In one recent
case, JASRAC informed a performer of classical Japanese songs, all of which
were composed over 800 years ago, that he would have to pay royalties in order
to perform such songs, despite there being no copyright for use of these songs.
After some bad press, JASRAC relented and stated that they were just concerned
that the performer may eventually include newer copyrighted material in his
performance. To many, a warning shot like this from JASRAC is akin to a bully
seeing what he/she can get away with without getting sent to detention.
JASRAC has also
sought royalty payments from other small businesses and in June 2016 initiated
a lawsuit against several restaurants, barber shops and clothing stores which
had been playing JASRAC protected music as background music. While the sums demanded by JASRAC from
each restaurant, barber shop and clothing store were not exorbitant, when one
takes into account that there are thousands of restaurants, barber shops and
clothing stores which would also be forced to pay royalties (in some case
retroactive over several years) to JASRAC, it is clear that JASRAC stood to
collect a vast sum of money by having a court judgment returned in their favor.
JASRAC prevailed
in a 2004 lawsuit brought against a ballroom dance studio1. The
Nagoya High Court agreed with JASRAC that the ballroom dance students were
defacto customers and accordingly, any music used in the studio could be
considered a public performance. It remains to be seen whether JASRAC employs a
similar technique in the case of the lawsuit brought by the music schools.
In late March 2018, the Sapporo High
Court handed down a ruling in the case brought by JASRAC against a barber shop
which played copyrighted music while customers were present. In the ruling, the
barber shop owner was found guilty of copyright infringement and ordered to pay
a sum of approximately $300 to JASRAC3. Given this ruling, it is
anticipated that JASRAC will attempt to collect royalties from any business
which currently broadcasts or has broadcast copyrighted material as background
music.
In April 2018, JASRAC announced that
while lawsuit brought by an association of music schools had yet to be settled,
it would offer a special 10% discount on payments for schools which signed
contacts and requested a list of all the songs played at each music school
willing to enter into a contract. As of August 2018, approximately 0.5% of the
over 7000 music schools in
In October 2018 it was announced that
1http://japanip.blogspot.jp/2017/06/jasrac-demands-royalties-from-music.html
2https://asia.nikkei.com/Life-Arts/Arts/Royalty-changes-strike-sour-note-among-Japan-s-music-teachers
3https://keisenassociates.com/jasrac-pauses-bgm-playing-by-barbershop/
4http://www.mondaq.com/article.asp?articleid=745914&email_access=on&chk=2407138&q=1661224