The progress of cloud computing services impacting on the copyright scope changes in Japan Takashi Nagatsuka Dept. of Library, Archival and Information Studies, Endowed Course for Promotion of Recurrent Education for Librarians, Tsurumi University. Tsurumi ,Tsurumi-ku,Yokohama, Japan, th International Conference on Information Capital, Property and Ethics (ICPE)

2 Cloud Services Library Next Generation Library System Fujitsu, NEC, Hitachi JAIRO Cloud : Japanese Institutional Repositories Online by NII 445 institutes Web-Scale Discovery Service OCLC WorldCat Discovery, EBSCODiscovery, ProQuest Summon, and Ex LibrisPrimo e-Journal, e-book, etc.

1. Introduction  The utilization of cloud computing i s still inadequate and the cloud services are thought to have a huge potential for development in the future in Japan.  The expectations regarding the contributions to come from cloud computing are high in Japan.  NIST defines Cloud Computing "Cloud computing is a model for enabling ubiquitous, convenient, on-demand network access to a shared pool of configurable computing resources that can be rapidly provisioned and released with minimal management effort or service provider interaction”  cloud computing is still an evolving paradigm. 3

1. Introduction  The data on the cloud services would flow and storage among servers potentially located outside national borders.  Pertinent legal questions such as the location of the data, the access of the data and the protection of the data.  The cloud services include online platforms for publishing photographs and videos, social networking sites and digital locker services. 4

1. Introduction  The legality of digital locker services centers mainly on whether a service provider falls within the definition of a principal committing copyright infringement,  No general fair use exception in Japanese copyright law.  Reversed the decisions of the lower court In 2011, the Japanese Supreme Court reversed the decision of the lower court which found no infringement based on the right of making broadcasts transmittable or the right of public transmission. 5

1. Introduction  The recent amendments of Japanese Copyright Law in 2012 provide punitive sanctions for downloading copyrighted works that have been uploaded illegally, even when this is done for private use.  The Copyright Division of Agency for Cultural Affairs published a report to express an opinion in 2015 on the cloud computing services and copyright in Japan.  This paper examines the progress of cloud computing services impacting on the copyright scope changes in Japan. 6

2. The cloud services in Japan  Slow adopting to foreign technology Japan is slow adopting to foreign technology, for example, social media services such as Facebook, Twitter, and others  The idea of using social media Japanese companies are still cold to the idea of using social media as part of their day to day operations  The benefits of cloud computing are not limited to just the ICT sector, the "cloud" is an important platform for the growth of all industries” 7

2. The cloud services in Japan  Japanese government announced a new strategy for “Japanese Renewal” The statement mentioned that expectations are high in Japan regarding the contributions to come from cloud computing because of the sharing of information being critical for Japan.  To develop a cloud computing service in Japan legal risks must be resolved and environmental improvement must be promoted  The presence of legal risks the delay and loss in viewing videos cross national borders and via mobile communication are caused by the presence of legal risks 8

2. The cloud services in Japan  The scope of copyrights can have economically and statistically significant impacts on investment and innovation. 9

3. The cloud computing services and limitation on the reproduction for private use  The Japanese Copyright Act has explicitly enumerated limitation provisions depending on each kind of bundle rights and relevant exploitations.  One such limitation is the private use limitation for the reproduction right 10 Article 30 (Reproduction for private use): (1) Except in the cases listed below, it shall be permissible for the user of a work that is the subject of a copyright (below in this Subsection simply referred to as a "work") to reproduce the work for his personal use or family use or other equivalent uses within a limited scope (hereinafter referred to as "private use")

 Each customer of certain cloud services wonders whether one should be liable for infringement of the reproduction right provided the use which falls within a “private use”.  A service provider still may be liable for the customer’s exploitation of the particular copyrighted works under the Karaoke theory or its variation.  The Karaoke theory wonders whether one should be liable for infringement of the reproduction right provided the use which falls within a “private use” The cloud computing services and limitation on the reproduction for private use

 The 'karaoke theory' is now prevalent among copyright infringement cases in Japan.  The Karaoke theory was originally adopted to decide whether a manager of a traditional Japanese Karaoke bar was liable for infringement of the “right of performance” on copyrighted musical works when it provided occasions for its customers to perform such works.  Copyright holders wanted to charge the manager of such a Karaoke bar instead of an individual customer The cloud computing services and limitation on the reproduction for private use

4. Cloud computing services and copyrighted works  The cloud services will limit the scope of which offer individual users the opportunity of storing copyrighted works on an online platform.  The first type of cloud services is an online platform for posting photographs, such as Flickr, Photozou and picasa, or an online platform for posting videos, such as YouTube and niconico, allows individual users to make content generally available on the Internet (Fig.1-1).  The second type of cloud services is a social networking site, such as Facebook, Line and Twitter, allows individual users to post various types of works, such as texts, photographs and videos (Fig.1-2). 13

14 Fig Fig Online platform for posting photographs or videos.

15 Fig Fig SNS service as online platform allowing individual users to post various types of works, such as texts, photographs and videos.

4. Cloud computing services and copyrighted works  Shares within an organization the data of copyrighted works is shared within an organization (Fig. 1-3).  The third type of cloud services is a digital locker service allowing individual users to upload personal copies of protected works to personal cloud storage space for later downloading or streaming on multiple devices, or a private video recorder allowing users to obtain recordings of TV programs for the purpose of watching them at a more convenient time or place (Fig.1-4). 16

17 Fig Fig Uploading the data of copyrighted works to a server within an organization and browsing it in same or other place.

18 Fig Fig Digital locker service allowing individual users to upload personal copies of protected works to personal cloud storage space.

5. Types of Digital Locker Services on the cloud and copyrighted works  The sub-committee of Council for Cultural Affairs in Japan presented a report to express an opinion on the cloud computing services and copyrighted works in  The first type in digital locker service is private/delivery type (Fig. 2-1) This type includes the e-book delivery service and Amazon cloud player etc.  The second type in digital locker service is share/delivery type (Fig2-2). This type includes the video/movies delivery service, such as Hulu and U-NEXT. 19

20 Fig Fig The contents are prepared by the provider and then uploaded on their server for each user, and then a user of the service downloads the copyrighted works from the server.

21 Fig Fig The contents are prepared by the provider and then uploaded on their server for users, and then users of the second type service download the copyrighted works from the server.

5. Types of Digital Locker Services on the cloud and copyrighted works  Private/user upload type This type and MYUTA. (Fig. 1-3).  Share/user upload type The contents of fourth type service are prepared by a user and then the user uploaded on the provider’s server for multi-users, and then users of the fourth type service download the copyrighted works from the server. (Fig.1-4). 22

23 Fig Fig The contents are prepared by a user and then the user uploads on the provider’s server for he/her own sake, and then the user downloads the copyrighted works uploaded by oneself from the server.

24 Fig Fig The contents are prepared by a user and then the user uploaded on the provider’s server for multi-users, and then users of the fourth type service download the copyrighted works from the server.

25 Table 1. Court decisions and social responses regarding the cloud computing services in Japan

6. Court Decisions and Social Responses Regarding the Cloud computing services  The legality of personal locker or placeshifting services as a type of cloud services centers mainly on whether a service provider falls within the definition of a principal committing copyright infringement, because there is no secondary liability theory in Japanese copyright law.  Most courts have applied an overall consideration standard such as the Karaoke theory or its variation to this issue.  Difficult to find the critical factor it is difficult to find the critical factor that would make a personal locker or placeshifting service legal or illegal. 26

6. Court Decisions and Social Responses Regarding the Cloud computing services  Rokuga Net in 2005 In 2005, Intellectual Property High Court (IPHC) concluded that the service of Rokuga Net was the principal committing infringement of the “reproduction right” by considering in terms of the actions of copying television programs as a whole.  MYUTA in 2007 Tokyo District Court concluded that the central servers in the MYUTA system are owned and managed by the provider, and that the provider is guilty of copyright infringement unless obtained consent from the copyright holder. 27

6. Court Decisions and Social Responses Regarding the Cloud computing services  Rokuraku-II in 2012 In 2012, IPHC concluded that the service of Rokuraku-II was the principal committing infringement of the “reproduction right” by transmitting television programs to a customer’s personal viewing device through an individual customer’s remote control  regulation rules on cloud media services in 2014 In 2014, the Cabinet Office of Japan presented the policy for the Regulatory Reform Council's Second Report of Recommendations. A major review of regulation rules on cloud media services in the field of business creation and IT field for objectives and perspectives of regulatory reform was recommended in the report 28

29 Fig. 3. Fig. 3. The conceptual diagram of Rokuraku-II as a cloud service.

7 Conclusions  Most courts in Japan have applied the Karaoke theory or its variation to the cases relating to the cloud services.  The legality of personal locker or placeshifting services as a type of cloud services centers mainly on whether a service provider falls within the definition of a principal committing copyright infringement, because there is no general fair use exception in Japanese copyright law.  Japanese Supreme Court reversed the decision of the lower court which found no infringement based on the right of making broadcasts transmittable or the right of public transmission in

7 Conclusions  Difficult to find the critical factor As affairs now stand, it is difficult to find the critical factor that would make a personal locker or placeshifting service legal or illegal.  With regard to improving the environment for cloud services in Japan the use of common content is being promoted for multiple information terminals, such as smart phones and tablet terminals..  With clarifying the extent of private duplication and indirect infringement in the copyright system and then apply necessary measures. 31

7 Conclusions  Illegal to download sound files or video files By revising Japanese Copyright Law in 2012, it is illegal to download sound files (music, voice, ring-tones, etc.) or video files (movie films, television programs, etc.) that are uploaded in violation of copyright laws.  Downloading those files is prohibited Even if for personal use, downloading those files is prohibited.  Punitive sanctions for downloading copyrighted works have been uploaded illegally, even when this is done for private use, would discourage each individual from using cloud services in Japan. 32

7 Conclusions  Cloud computing services and copyright in Japan Copyright Division of Agency for Cultural Affairs presented a report to express an opinion in 2015  Infringement of reproduction rights The report did not express whether are liable for infringement of reproduction rights concerning the use which falls within a “private use”. A service provider has possibilities to be liable for the customer’s exploitation of the particular copyrighted works under what is known as the “Karaoke theory” or a variation thereof.  Legality of cloud computing services To ensure that cloud computing technology can be fruitfully developed, the legality of cloud computing services, such as digital locker services, should be necessary to more careful examination in the future. 33

THANK YOU! Takashi Nagatsuka Dept. of Library, Archival and Information Studies, Tsurumi University Yokohama, Japan 34