November 01, 2004

Circumvention As Such

is not prohibited in Japanese law.

Let's take my example from yesterday's post: Someone circumvents some e-book DRM to extract Akutagawa's "Kappa". That would be circumvention, but no violation of copyright, which expired in 1978 (fifty years after the death of the author in 1927, Article 51 of the Japanese copyright law).

Since there is no copyright to begin with, the limitation in Article 30 is not necessary. Akutagawa is in the public domain. The exception to the limitation in Article 30 Section 1 Subsection (ii) stops the fair use right to copy for personal use, if the work in question is not in the public domain. If you rent a CD, Article 30 gives you the right to copy music on your computer for your personal use, except if you circumvent DRM in the process.

With works in the public domain, you don't need the limitation in Article 30 in the first place. So, contrary to what Bovens said, I think it is legal to extract content from DRM if the content in question is already in the public domain.

For further explanations on the issue I would recommend looking at the July 1999 issue of the Japanese journal "kopiraito", which has an explanatory article on the legislation by one of its authors.

That point might be understood to be treated differently under the European 2001 Copyright Directive. Article 6 Section 1 reads:

"1. Member States shall provide adequate legal protection against the circumvention of any effective technological measures, which the person concerned carries out in the knowledge, or with reasonable grounds to know, that he or she is pursuing that objective."

That might be understood as a prohibition of circumvention as such. However, the German implementation of the Directive also has a prohibition of circumvention only in cases where the work in question is not in the public domain, see Articles 95a, 108b of the German copyright law.

Posted by Karl-Friedrich Lenz at November 1, 2004 02:32 PM | TrackBack