Out of tune
Music schools clash with copyright enforcers in Japan, where debate over rights management may hold lessons for the rest of Asia.
The Japanese word for music, ongaku, is written with a pair of Chinese characters. The first means “sound”, while the second stands for “fun”. But there is nothing fun about a raging dispute between the country’s dominant music copyright collective and a group of instrument manufacturers and private music schools.
The Japanese Society for Rights of Authors, Composers and Publishers, or Jasrac, sparked the conflict in February when it announced it would begin charging the schools for their use of music under its management. Organisations and companies such as the Yamaha Music Foundation and Kawai Musical Instruments, which run such schools, decided to fight.
They banded together to form the Group for Protecting Music Education and filed a lawsuit, arguing Jasrac has no right to collect the fees.
Jasrac — which issues licences and collects royalties on behalf of composers, songwriters and other copyright holders — figured the private music schools were the last such institutions operating beyond its reach. It already extracts fees from dance academies, singing schools and the like.
Nevertheless, Jasrac was met with public outrage, especially on social media. It did not help that the organisation already had a reputation for being too eager to collect payments.
Its 15 offices around the country inform businesses and other parties they are obliged to pay for copyrighted music, then monitors them to ensure they are paying enough. One case involved a performer of ancient Japanese court music, who reportedly received a request for fees.
The songs in question were 1,000 years old; Japanese copyright lasts for 50 years after the owner’s death. Jasrac clarified that it merely wanted to ensure the performer was not playing contemporary songs, but that did little to change its reputation for overzealous enforcement.
Even the music school controversy does not seem to have softened Jasrac’s approach. In a commencement address this year, the president of Kyoto University quoted Bob Dylan’s Blowin’ in the Wind. When Jasrac spotted a transcript of the speech on the university’s website, it asked for compensation. It eventually retracted the request, but its reputation took yet another hit.
Jasrac’s track record surely contributed to the indignation over the music school decision, but it was always going to be a tough sell. After all, the schools are aimed primarily at children, and anything that raises the cost of children’s education is bound to meet resistance.
But at the heart of the matter are complex legal issues, particularly the interpretation of “performing rights” under Article 22 of the Copyright Law — the basis for Jasrac’s plan.
Article 22 stipulates that the “author of a work has the exclusive right to give a stage performance or musical performance of the work with the purpose of having it seen or heard directly by the public”. The collective claims students constitute “the public”, and that teachers performing protected songs without permission — in other words, without paying fees — are violating copyright.
The Group for Protecting Music Education, on the other hand, insists students do not constitute “the public”, and that Article 22 is only referring to performances meant to convey a song’s artistic value. Performances for the purpose of teaching fall outside the law’s scope, the group says.
“It’s a difficult issue,” said Yukihiro Terazawa, a partner at the law firm Ito & Mitomi/Morrison & Foerster. “I think Jasrac have the upper hand in their interpretation of ‘the public’,as there are similar legal precedents.
“But on the purpose of the performance, there are no such precedents. Normally, Article 22 is thought to be referring to performances at places such as concerts. Playing music [at schools] is not done with the intent of amazing someone, and [the group’s argument] holds some water.”
Disputes are nothing new for Jasrac: Its establishment in 1939 stemmed from a battle earlier that decade between Japanese broadcasters and a German teacher named Wilhelm Plage, who acted as a representative for European collectives in Japan.
Plage went about collecting fees from broadcasters and orchestras that played Western music, but an attempt at raising the rates proved a step too far. The national broadcaster NHK declined to pay, and stopped playing Western music for a year.
The German teacher went on to create his own collective, prompting the government to pass a law giving Jasrac the sole right to serve as an intermediary between copyright holders and licensees.
Jasrac today controls 98% of the music copyright fee business. NexTone, the other player, provides little competition.
“Jasrac didn’t build its network in a day, it was built on its dominance over 60 years or so,” said Yuji Arakawa, chief operating officer at NexTone. “It’s important [for us] to take away market share, but at the end of the day, we are working for the good of the rights holders. If offering Jasrac competition causes the organisation to change for the better, it will benefit the holders.”
Yet, in the complex world of copyright management, competition might hinder the development of the music industry.
“Asian countries tend to have multiple copyright collectives,” said Hideki Nogata, manager of Jasrac’s international relations department. “For example, in Thailand, they have nearly 30. When you look at the karaoke shops in Japan, the reason they have so many songs on their lists is that there has only been one window for negotiation, Jasrac.
“When you have a single reliable copyright collective, new uses for music can be born, but in Asia, it hasn’t got to that stage yet.”
Nogata also noted that it is still a common practice in many Asian countries to buy out the rights to music. Musicians are often pressured to give up their ownership for a lump sum — taking away the opportunity to earn royalties later on. “Copyright collectives are left to manage what little remains,” he said.
All this helps explain the stark differences between Jasrac and its Asian peers: In 2014, the Japanese collective raked in the equivalent of €935 million worth of copyright fees, versus €15.2 million for China’s MCSC, €1.6 million for Thailand’s MCT and €615,000 for Indonesia’s WAMI.
Variations in market size aside, Jasrac’s figure is a testament to its resolve to fulfill its mission of redistributing money to composers and songwriters.
Herein lies the fundamental difference between Jasrac and the Group for Protecting Music Education.
Jasrac believes that adequate returns give creators the incentive to produce more. This cycle of creativity fuels the growth of Japanese music.
“There is nothing but merit” in Jasrac taking care of copyright issues, said Yashikin, a composer at FMF. “When I receive statements [from Jasrac], it’s kind of surprising to know that I am receiving royalty payments from places I wouldn’t have imagined. For someone like me, who is an occupational composer, every little penny counts.”
The Group for Protecting Music Education acknowledges Jasrac’s position. But Wataru Miki, managing director at the Yamaha Music Foundation and chairman of the group, still prefers a more relaxed approach.
“The best-case scenario is where everyone enjoys music, and willingly pays the copyright fees,” he said. “I think what is happening now is that people are opting against playing music [in fear of being charged]. Jasrac might be getting the money, but I think Japan is headed in the direction of not playing music anymore.”
The dispute is expected to drag on. In the meantime, it is spurring debate on Japan’s copyright rules, which are often criticised as out of date.
“Japan’s Copyright Law is based on a ‘rules’ approach, where there is less room for interpretation by the court, compared to the law in countries adopting a ‘standards’ approach, such as US fair-use law,” explained Terazawa from Ito & Mitomi/ Morrison & Foerster.
“The standards approach identifies principles a court should follow ... and thus increases the law’s flexibility, and gives more discretionary power to the court. This flexibility allows each case to be decided based on its own facts.”
Some would like to see the fair-use doctrine, which permits the unlicensed use of copyright-protected works in certain circumstances, adopted in Japan. Playing music in private schools would constitute fair use, says Yamaha’s Miki.
When Jasrac learned that the president of Kyoto University had quoted the Bob Dylan song Blowin’ in the Wind in a commencement address, it asked for compensation. It eventually retracted the request, but its reputation took yet another hit