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Zeitschrift für Japanisches Recht
All Her Trouble Seemed So Far Away: USA v. Japan Before the WTO Christopher
Heath
I. YESTERDAY
Ah, yesterday, it was all good day sunshine, but now it looks as though it isn't here
to stay: In February 1996, the U.S. has accused Japan of not properly complying with the
GATT/TRIPS Agreement and brought the case before a panel of the newly set up World Trade
Organisation (WTO).
When on 15th April, 1994, after eight years of negotiations, the "Uruguay-Round"
on the General Agreement on Tariffs and Trades (GATT) was concluded in Marrakesh, Morocco,
a new chapter for world trade had begun: First, disputes on the implementation and
interpretation of rules covered by the GATT could be brought before a compulsory
arbitration panel with rulings binding to both parties. Second, intellectual property
protection was included into the framework of GATT via a side-Agreement on Trade-Related
Aspects of Intellectual Property Rights (TRIPS). This TRIPS Agreement requires all
signatory states to comply with certain minimum standards of protection for a number of
intellectual property rights. Apart from patents, trademarks, designs, and trade secrets,
minimum levels of protection have also been introduced for "copyright and related
rights". The rights of phonogram producers that are in dispute between Japan and the
U.S. belong to the category of related rights, also and more commonly called neighbouring
rights. Copyright specialists, a sophisticated-thinking bunch of people, have made a
distinction between the rights of creators of works (authors, painters, composers, etc.),
that is, copyright, and the rights of persons performing or commercially exploiting such
works by technical means. It is easy to see that the performers of Beethoven's Ninth
Symphony are not its authors. The author is undoubtedly Beethoven, and for this reason,
orchestras and conductors cannot obtain any copyright. Nevertheless, they should have the
right to exploit their performance. In a similar fashion, phonogram producers help to
spread recorded performances by technical means. But certainly, phonogram producers are
not the authors of the works on the CD. Yet, because of their financial commitment, they
may have a vital commercial interest in that their records are not produced without
permission, put in CD-rental shops, etc. In short, performers and phonogram producers,
although unable to obtain copyright protection because they do not qualify as authors,
need something just like copyright protection. For this reason, modern copyright laws have
introduced a category of related rights or neighbouring rights.
Commercially, such protection of neighbouring rights makes a big difference. While the
copyright fees paid to the authors amount to about six percent of a CD's price, additional
neighbouring rights for performers and phonogram producers would account for a hefty 8-30
percent of a CD's price, depending on the popularity. Such money must be funny not only in
a rich man's world.
Art. 14 of the TRIPS Agreement now obliges Member States to endow phonogram producers with
the right to authorise or prohibit the direct or indirect reproduction of their
phonograms. So far, so good. But hasn't Japan properly done so?
II. MAGICAL MYSTERY TOUR
Trying to find out the relevant Japanese laws applicable to the protection of foreign
phonogram producers is almost a magical mystery tour, that, when only reading the present
Copyright Act, very soon makes you look like the fool on the hill.

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