Copyright in Classes

Copyrighted Works in Classes

What are some of the situations in which you deal with third-party copyrighted works in your classes?

Use of text or illustrations in print or ...

I sometimes use them in the slides I show in my class. I also use the LMS (Learning Management System) to distribute materials.

Dr. Konaka also writes on the board and reads to the students, right?

Oh, is that related to copyright too?

Writing on the board is related to reproduction rights, reading publicly is subject to recitation rights, and distributing materials in the LMS involves reproduction and public transmission rights.

In "Chapter 1 Section 04 What is Copyright?" we were told that viewing and operating a website is a public communication.

We have that, too. Also, there are times when we play videos in classes, and that involves on-screen presentation rights.

So, copyright involves many different rights.

In "Chapter 1, Section 04 What is Copyright?" we talked about available copyrighted works and limitations of rights. When handling a third party's copyrighted work in classes, it is necessary to confirm as shown in the "flow chart for handling copyrighted works in classes" below.

There are many provisions limiting rights, but in the classroom, it is recommended to keep in mind "Citation (Article 32(1))", "Reproduction, etc. in schools and other educational institutions (Article 35)", and "Non-profit on-screen presentation, etc. (Article 38)".

Article 38 can apply to many cases like the previous examples such as reading to a class or showing a video.

We explain Articles 32 and 35 in more detail in the following sections.

What is a citation?

What do you think of when you hear the word "citation"?

If it's used or pulled from somewhere else, is it a citation? Is it a reprint?

Like a summary or something?

"Citation" in the broadest sense means different things to different people. What is explained here is only a "citation" under the Copyright Act. Please note that the term "citation" used in a broader sense has a different meaning.

Article 32(1) of the Copyright Act states:

To use a copyrighted work as a citation under Article 32(1), all of the following requirements must be met:

What does it mean that "it must be a citation" is among the requirements for applying a citation?

You want to reproduce a third party's work for some purpose. At that time, it must be clear which part of your work is being reproduced (distinctiveness), and your work must be qualitatively and quantitatively the "master" (master-subject relationship). These are the minimum requirements for a "citation" rather than a mere reprint [difference between citation and reprint].

I see. So, if it is a "citation," and all the other requirements, such as the source indication, are met, then Article 32 can apply.

Your understanding is correct.

It is often not a legitimate scope for citation to include illustrations for liveliness because the margins of prints, slides, etc. are blank. However, if you need to study or critique a certain character, you can cite and use a picture of that character.

If it was a study of Pikachu, you could use Pikachu's picture.

You need to fulfill all the requirements for citation, so it does not mean that you can use any picture of Pikachu if you are researching Pikachu.

What is the source ... ?

Haha, the usual way to say it is "show the source".

If it's a sentence, it has to be written as is, right? Even if there are typos in the original text?

The cited part should be written as it is. If there are typos or omissions in the original, it is best to write "as is" or something similar. Translated citations are allowed under the Copyright Act.

What should I do with images and such? Do I crop a portion of the image with the minimum necessary or use it in its original form without alteration?

The basic rule is to use the image as is. However, if you wish to refer to a part of the image with particular attention, you must indicate that it is a part of the image and make it clear that it is a citation [example of citing an image].

What should I do with a video? I know you said not to alter it, but don't you want to mention just a particular scene?

For videos, it is possible to cut out the part of the video to be cited to the extent necessary or to use screen captures. Again, the citation must be clear and meet all requirements for citation.

The extent of using only what is needed is well understood, but what is the master-subject relationship like?

In the case of text, the part you are writing must be more than the cited part. In the case of images, if the image is used in such a way that it has the main meaning, it does not count as a citation. For example, a half-page spread in an art book is a high-quality image.

In many cases, a slide page can only contain the image and a little explanatory text. Then the image will inevitably be larger.

I think you are usually using slides when you are giving a presentation, so you are explaining verbatim. If you do so, your content together with the teacher's explanation would be the "master" content, and the image would be the "subject" content, then I think you can apply the citation.
However, if only this slide material is distributed, the teacher's verbal explanation will be lost, and when the entire slide is image-centered and one's explanation part is thin in both volume and content, the master-subject relationship may be NG.

Hmmm, harsh ...

Limitations on rights when dealing with copyrighted works in the classroom

Article 35 of the Copyright Act provides for limitations on rights when dealing with copyrighted works in the course of classes. It allows the use of other people's copyrighted works without the permission of the copyright owner, although only to a limited extent, for materials that you wish to share with students in a class.

It is important to be aware that you cannot do everything, but what you can do and the scope of what you can do are "limited". They are written in the text of the Copyright Act, and the Guidelines for Article 35 under the Amended Copyright Act attempt to summarize them in more concrete terms.

Such material, we simply call the Guidelines. The Guidelines are explained in detail in "Section 04: Guidelines for Article 35 under the Amended Copyright Act".

The Article reads as follows.

I don't know what you're talking about! Impossible! I'm already confused ...

The sentences in brackets are long and it's hard to tell where they are connected ...

It is difficult because it is a legal expression. For those of you who find it difficult, we have the Guidelines for Article 35 under the Amended Copyright Act. In this material, the contents of the Guidelines will be explained in an easier-to-understand manner.

It's got the word "amended" in it, but what does it mean?

I need to explain the background behind the creation of the Guidelines.

Amended Article 35 in 2018

The Copyright Act is often amended, and in 2018 there was a major amendment to Article 35 and the sections related to it [former Article 35 and amended Article 35]. Specifically, a compensation system was introduced.

Under the former Article 35, third-party copyrighted works were handled in the classroom as follows.

Under the amended Article 35, public transmission for teaching and the aforementioned public transmission may be conducted without permission if compensation is paid. The table below summarizes what can now be done for each type of class, as shown in the "Permission for Public Transmission".

What complicates matters is that compensation is not required for all public transmissions. Among public transmissions, so-called remote joint classes, etc., can be used without compensation and a license (Article 35(3)).

This is because the use that could be made free of charge before the 2018 amended Copyright Act will continue to be made free of charge, leaving use that can be made free of charge for public transmission after the amendment.

The Agency for Cultural Affairs, states that this material uses the term "remote joint classes, etc." because "remote joint classes" includes two types of classes. The term "remote joint classes, etc." includes "simultaneous relay joint classes" and "simultaneous relay remote classes".

The difference is whether or not there is a faculty member at the secondary site. In other words, a "simultaneous relay joint class" is a type of class in which multiple venues, each with faculty members and students, are connected in a manner that allows two-way communication. In contrast, a "simultaneous relay remote class" is a type of class in which a class being held in a classroom at the main venue with faculty and students is streamed in real-time, and the students can take the class alone at a secondary venue such as their homes [Classification of Remote Class Types].

Compensation should be paid to the copyright owners of copyrighted works that have been publicly transmitted, but it is practically impossible for teachers and students in the field to find the copyright owners and pay them directly. Therefore, a management organization was created to collect the compensation, which is then paid to the organization and distributed to the copyright owners. This system is called the "Compensation System for Public Transmission for Educational Purposes". The collective payment of compensation is also made by the educational institution's establishment, so there is no need for each teacher to pay it (Article 104-11). The establisher is the city for a municipal elementary school, the prefecture for a prefectural high school, or a national university corporation or school corporation for a university.

The organization that collects, manages, and distributes this compensation is called SARTRAS (Society for the Administration of Remuneration for Public Transmission for School Lessons).

When you collect money from all over the country like that, what will it be used for?

Please do not be angry. We are sure that you will write a paper or book, and if your work is used in a public transmission in class, the money will be distributed to you from the compensation collected.

What? Can I get money?

That's right. So, when the time comes, you will be contacted so please take the necessary steps.

What the heck, I'll just have to do it then.

When Article 35 was amended, a meeting was set up to bring together the rights owners and the educational institutions to discuss how Article 35 should be implemented. This is called the "Forum of Those Related about Educational Use of Works" ("Forum").

As explained in "Chapter 1, Section 01 What is the Copyright Act?", it is difficult to find a balance between the protection of rights and fair exploitation, so it was decided that a common understanding should be determined by sharing opinions between the parties.

Legal experts also participate as members and provide advice on legal perspectives.

Guidelines for Article 35 under the Amended Copyright Act

The "Guidelines" are a summary of the operation of copyrighted works in the classroom at the Forum explained earlier. This material provides an easy-to-understand explanation based on the Guidelines FY 2021, December 2020. It can be read in its entirety on the SARTRAS page. You can also download the PDF file. The Guidelines were first published in FY2020 and revised in FY2021. Discussions are still taking place in the Forum regarding the contents of this document, so it may be revised in the future. Be sure to always check for the latest version.

On this material, we simply call as the Guidelines. In addition, this material will be based on the 2021 version of the Guidelines.

Definition of Terms

As explained in Chapter 1, the Guidelines explain terminology based on specific scenarios when dealing with copyrighted works in the classroom.

Reproduction (p. 5 of the Guidelines)

So-called photocopying, but making a PDF of a paper or taking a photograph of a paper document is also a "reproduction". The following examples fall under the category of reproduction.

Reproductions made under Article 35(1) may be distributed in class (Article 47-7).

Public transmission (pp. 5-6 of the Guidelines)

Transmission to "an unspecified person or a large number of specified persons (the public)" by broadcasting, cable broadcasting, Internet transmission, or other means, including making available for transmission through the Internet by storing on a web server (making transmittable). Transmission between a teacher and students in a class is a public transmission.

I have a class of about 30 students.

P. 6 of the Guidelines says, "In general, transmission between a teacher and students in a class is considered to be a public transmission", so we should assume that Dr. Konaka's class is also public.
It is not clearly defined how many people are specifically referred to as "the public" in the Copyright Act.

According to the Guidelines, at least the standard number of people in an elementary school class would make it "public," but there is no specific standard for how many people fit the definition of "public". It is difficult to handle such a legally gray area, but it seems that the Forum has not yet reached a common agreement on the number of people.

If you don't know, you should be careful anyway ...

It is important to note that if the number of people is unidentifiable (unspecified), they are interpreted as "the public" even if the number of people is small. This is an area of disagreement even among the experts.

There are only 5 people in my seminar.

Just because the number of people using a copyrighted work is small does not mean that it is not representative of "the public". If the number of people using a work changes from time to time, it is "unspecified" and can still constitute "the public".
For example, it is expected that the Forum will set a strict limit on the number of students in a seminar and that certain criteria such as less than 10 students will be set forth to exclude it from being considered a "public".

Public communication (p. 9 of the Guidelines)

A "public transmission," such as a broadcast or Internet distribution, is intended to be directly received by the public. A public transmission is when a work that has been publicly transmitted is further shown or heard by the public using a receiver.

"Educational Institutions" to which Article 35 applies (p. 6 of the Guidelines).

A non-profit educational institution that engages in educational activities on an organized and continuous basis, and is established under the applicable laws and regulations, is an educational institution to which Article 35 applies.

"Classes" to which Article 35 applies (p. 7 of the Guidelines)

The "classes" here are not classes in the general sense, but only "classes" to which Article 35 can apply. The Guidelines define it as "educational activities conducted by a person in charge of education under the responsibility of a school or other educational institution and its control, for learners. It does not include activities conducted by students on their own initiative or by teachers teaching each other.

Are primary and secondary club activities "classes" and college club activities not "classes"?

Club activities in elementary schools are defined as educational activities called "special activities" in the Courses of Study. Club activities in junior high and high schools are voluntary activities of students, but they are equivalent to special activities, such as those conducted under the guidance of the teacher in charge.
On the other hand, this is not the case for universities, which means that they do not fall under the definition of "classes. "

"Person in charge of teaching" and "person taking classes" (p. 8 of the Guidelines)

Next, we will explain the "person in charge of teaching" and the "person taking classes" in Article 35. These are defined as follows.

The extent that is found to be necessary (p. 8 of the Guidelines)

The faculty member in charge of the class will determine whether the reproduction is "the extent that is found to be necessary" for the classes. The teacher must be able to objectively explain why reproduction, public transmission, or public communication is necessary.

No standard can always be used to determine whether a book is within "the extent that is found to be necessary," for example, how many pages it can be. It depends on the content of the class and the way it is conducted and should be determined according to the actual conditions of each class.

Cases in which the interests of the copyright owner would be unreasonably prejudiced (pp. 9-19 of the Guidelines)

The end of Article 35(1) says, however, this shall not apply" if the action would unreasonably prejudice the interests of the copyright owner in light of the nature and purpose of the work, the number of copies that would be made, and the circumstances of its reproduction, public transmission, or communication". This proviso should be taken into consideration.

When does "unreasonably prejudice the interests of the copyright owner" take place?

Just by reading the article, it's not clear to what extent it would be unduly harmful.
P. 11 of the Guidelines states that an important aspect is "whether or not the reproduction or public transmission will decrease the sales of commercial products or hinder the potential future sales channels of copyrighted works".

For example, if all the math drills used by elementary school students were copied and distributed to everyone in the class, there would be no need to buy the drills. This kind of action unreasonably prejudices the interests of the copyright owner.
However, it is difficult to determine, as it depends on the situation and the state of use. This area is also discussed in the Forum and will be explained.

The term "unreasonably prejudice the interests" as used in the proviso means "unreasonably reducing" sales. Even if the use is to "the extent that is found to be necessary", if the copyright owner can objectively explain that the use "unreasonably prejudices the interests of the copyright owner," such use is unauthorized and not allowed.

If works are reproduced or publicly transmitted without permission for teaching, it will have some impact on the sales of commercial products. This is why the system of paying compensation was established. Therefore, it is thought that a little use can be covered by compensation. The wording to "unreasonably prejudice the interests of a copyright owner" is indicative of a considerable amount of usage.

The Guidelines provide the concept and examples of what constitutes to "unreasonably prejudice the interests of the copyright owner".

Types of works

Reproduction and public transmission of copyrighted works, such as drills and software, which should be purchased separately by each student/pupil, unfairly diminish sales and unreasonably prejudice the interests of the copyright owners.

In the case of short verbal works (haiku, tanka, poetry, etc.), pictorial and photographic works, the use of the entire work is essential, and partial use may constitute an infringement of the integrity right. For such types of works, reproduction or public transmission of the entirety of a work is unlikely to unreasonably prejudice the interests of the copyright owner, etc.

On the other hand, the reproduction and public transmission of an entire feature film or novel are likely to cause unreasonable prejudice to the interests of the copyright owner. If a work is quite difficult to obtain, and permission for its use cannot be obtained through reasonable means, it may be possible to reproduce the entire work, and it is considered necessary to make a judgment on a case-by-case basis.

When reading a thesis in a college class or seminar, you will generally read the entire report. On the other hand, because the articles are specialized, their target readers are limited, so when reproducing or publicly transmitting them in class, it is necessary to carefully consider whether the interests of the copyright owner will be unreasonably prejudiced (Chapter 3, Q14, Q15).

Uses of Copyrighted Works

In the case of works sold to students and pupils, the application of Article 35's limitation of rights may have a direct impact on sales. Therefore, the possibility of unreasonably prejudicing the interests of copyright owners is likely to be higher than in the case of other uses of copyrighted works.

If the work is designed as a textbook for students and pupils, it is unlikely that the reproduction of a large portion of the work will unreasonably prejudice the interests of the copyright owner if it is in the designated textbook and everyone has it.

Number of copies and number of recipients of public transmission

P. 18 of the Guidelines states that reproduction and public transmission up to the number of students in the class in question, regardless of the number of students, will not unreasonably prejudice the interests of the copyright owner.

In addition, when the same materials are sent to students for parent visits or faculty visits in research classes, the number of students plus the number of visitors is "the extent that is found to be necessary". In this case, this would not unreasonably prejudice the interests of the copyright owner.

Showing a recording of a movie or TV program in the classroom can be done without permission as a non-profit, free-of-charge showing (Article 38(1)). However, making a copy of the movie and distributing it to a certain number of students or making it available for viewing on demand at any time is likely to unreasonably prejudice the interests of the copyright owner.

Manner of reproduction, public transmission, and public communication

The term "manner" is unfamiliar, but it means so much more than the manner of reproduction or public transmission.

Making copies of a work in a form that allows the work to be bound and preserved for a long period, or making copies of images or sounds as files of such high quality that they can be viewed independently, or in any other way that allows the copies to be used for other purposes on their own, is likely to unreasonably prejudice the copyright owner's interests.

In the case of public transmissions, those who can receive the information should be limited to those who teach the class and those who receive the information. For example, even if the transmission of information to the world by students is a necessary activity for classes, the inclusion of copyrighted works covered by Article 35 in such activities is likely to unreasonably prejudice the interests of copyright owners.

The basic concept is above. Examples are summarized below.

In short, Article 35 stipulates that
"published works" may be used by teachers and students
"in the course of classes" at the appropriate
"educational institution" to the
"the extent that is deemed to be necessary" for the classes.
As long as the amount and usage do not unreasonably prejudice the interests of copyright owners,
you don't have to get permission from the copyright owner.

Teachers and students can reproduce, publicly communicate and pay compensation for public transmissions.

Incidentally, Article 35 can also apply to neighboring rights (Article 102(1)). Thus, you can use copyrighted works that have been performed, recorded, broadcast, or broadcast by cable.