Legalizing Google

The printed edition of the Asahi Shinbun today leads with an article about plans to legalize Google. I am sorry to say that I can’t find any link online to this right now.
As the article correctly notes, under current Japanese copyright law it is illegal to copy other peoples’ works without a license into a database.

In the opinion of the Working Group on Contents (Kontentsu Senmon Chosakai Kikaku Wahkingu Guruhpu) that should change.

They seem to think that

a) Google is legal under American law and

b) having Google’s servers in America instead of Japan somehow shields them against complaints from Japanese copyright holders.

I disagree with point a). I won’t go into detail here, having done so extensively elsewhere on this Blog.

The other point would seem to need some discussion. I don’t think that you can just forget about Japanese copyright if you only place your server in some pirate nation that has no respect for copyright (as America, under the Working Group’s theory).

However, under their theory, the Working Group thinks Japanese developers of search engines are handicapped, since they can do less than American providers like Google and Yahoo.

And to change that, they plan on pushing through legislation this year that would introduce a new limitation to copyright for search engines into the Japanese copyright law.

I oppose these plans.

First off, the premise that opt-out search is legal under American law is wrong.

Second, this kind of wholesale exception would need some serious scrutiny under TRIPS, especially considering US – Section 110(5) Copyright Act.

Third, there is no reason to assume that opt-in search does not work. This limitation is therefore not necessary.

Lastly, I fail to see how this fits into the general strategy of strengthening intellectual property rights to assure the economic basis of Japan in the Twentyfirst Century. Giving the rights of Japanese copyright owners unconditionally away to Google does not seem to be a smart move if one wants to base the whole country on intellectual property.

And if they want Japanese search engines to take a slice of Google’s market share, all they would need to do is build those under opt-in and then take Google out of the Japanese market completely for deliberate and systematic violation of copyright (a criminal offense under current law). If you can fine the Winny developer, you can of course enforce current copyright law against the Evil Spam Empire.
If things go according to the plans of the Working Group, legislation will be introduced this fall.

While I don’t agree with these plans, I am pleased to see them confirm that under current Japanese copyright law all opt-out search engines are clearly illegal.