When Can Materials Be Freely Used for Class?

Outline of This Article

This article provides an explanation of Article 35 of the Copyright Act related to the use of copyrighted works in the classroom and details of examples of how to use copyrighted works. It is intended for teachers who create course materials in schools and other educational institutions in Japan.

This article consists of two parts, and is written based on the “Guidelines for the Application of Article 35 of the Revised Copyright Act (2021 version)” discussed at the “Forum of Parties related to Educational Use of Copyrighted Works”. In the first part, we will review the knowledge of copyright explained in the “The Basics of Copyright Law” article of this website. The second part explains in detail when it is possible to use copyrighted works at universities. We recommend that you read Part 2 since it covers most of the issues that you will encounter in your actual classes.

First, let us review the basics of copyright.

Japan’s Copyright Act grants exclusive rights to the creators of copyrighted works for the use of their works. In addition, the Copyright Act also includes provisions that ensure freedom of use of copyrighted works (provisions for limitation of rights), thereby reconciling the interests of rights owners with those of users.

  • What is a “Work”: The Copyright Act defines “work” as “a creatively produced expression of thoughts or sentiments”1. It is said to include novels, articles, music, paintings, prints, photographs, movies, computer programs, and so on2.
  • Who is an “Author”: The term “ “author” means a person who creates a work”3. Idea providers, input assistants, etc. are not recognized as authors.
  • What are the Restricted Rights Provisions: When we use works, we need the permission of the right holder, in principle, However, in the case of some specific purposes or forms of use, the work may be freely used without the right holder’s permission. (e.g., private reproduction4, use by quotation5, reproduction in schools, and other educational institutions, etc.6)

There are various exceptions and points to note in addition to the above, so please refer to the The Basics of Copyright Law on this website or the website of the Agency for Cultural Affairs (in Japanese).

Article 35 of the Copyright Act and Specific Examples

Although there are various requirements for the use of copyrighted works, Article 35 of the Copyright Act allows, in principle, free use of copyrighted works in educational institutions in Japan.

Article 35 was revised in 2018 in order to promote ICT in education. Before the revision, Article 35 restricted the rights to reproduction and paper distribution of works in face-to-face classes and public transmission of works in online classes (this only applied to some forms of classes), but the 2018 revision allows us to use works in online classes of all forms without a license7.

In addition, with the revision of Article 358, a new system of compensation for public transmission for class purposes was established in order to secure the interests of right holders and others. Under this system, with regard to public transmission in the class formats newly added by the revision of the law, the educational institution’s establisher9 is required to pay a considerable amount of compensation to the Society for the Administration of Remuneration for Public Transmission for School Lessons (hereafter: SARTRAS)10. For a detailed explanation of SARTRAS, please refer to the article on this site about “The Background and Role of the Compensation System for Public Transmission for Educational Purposes / SARTRAS”.

The following explains the exceptional treatment of works in educational institutions based on the “Guidelines for the Application of Article 35 of the Revised Copyright Act (Edition of 2021)” (hereafter: Guidelines), citing specific examples. The examples raised in a. to e. are considered not to unreasonably prejudice the rights of owners in the use of works in educational institutions, and the examples raised in f. are considered to unreasonably prejudice the rights of owners.

a. Must Be Used in “Schools and Other Educational Institutions” 11

A work needs to be used in a “school or other educational institution” in order to correspond with the limitation of rights provision of Article 35. This means a non-profit educational institution that engages in educational activities on an organized and continuous basis. For example, the following are applicable.

  • Kindergartens, elementary schools, junior high schools, colleges, universities, etc.
  • Nursery school, school children’s education, etc.
  • Civic museums, museums, art museums, libraries, etc.

In contrast, the following facilities do not fall under this category.

  • Educational facilities such as for-profit companies
  • Corporate training facilities
  • Culture centers

b. Must Be Used by “Those Who Are in Charge of Education and Those Who Are Taking Classes” 12

Next, only “people in charge of education and taking classes” can use the system. In other words, this means faculty members who actually conduct classes and students (including non-degree students) who take classes.

c. Must Be “Used in the Course of Teaching” 13

It needs to be used “in the course of teaching”. Specifically, the following uses fall under this category.

  • Lectures, practical training, exercises, seminars, etc.
  • Public lectures sponsored by schools and other educational institutions (conducted as part of their own business)
  • Certificate programs (educational programs for working adults, etc., for which a certificate of completion is issued to those who have completed the program in accordance with the School Education Law)

In contrast, the following activities do not fall under this category.

  • School information sessions for prospective students, mock classes at open campuses, etc.
  • Faculty and Staff Meetings
  • Seminars and information for faculty and staff conducted as Faculty Development (FD)14 and Staff Development (SD)15 at universities
  • Extracurricular activities in higher education (club activities, etc.)
  • Volunteer work (not for credit)

d. What Uses Are Allowed: “Reproduction,” “Public Transmission,” “Public Communication” 16

The three types of use permitted under Article 35 are “reproduction,” “public transmission,” and “public communication.

First, “reproduction” means “the physical replication of a work through printing, photography, or copying, through the recording of sound or visuals, or in any other way”17, and refers to the following uses, for example.

  • Writing literary works on the blackboard
  • Using a copy machine to copy a work printed on paper to another piece of paper / saving a scanned PDF file to a storage device
  • Saving files containing copyrighted work to a computer, smartphone, USB memory stick, etc.
  • Recording of TV programs to a hard disk
  • Taking pictures of image data projected on a screen by a projector with a camera, smartphone, etc.

Next, “public transmission” refers to transmission to the public (unspecified persons or a large number of specified persons) by means of broadcasting, cable broadcasting, Internet transmission (including uploading to a server), and so on18. For example, it includes distributing class videos and uploading lecture materials to the Internet, such as to a learning management system19.

Finally, “public communication” refers to the communication of a publicly transmitted work to the public using a receiving device20. For example, this includes making a video related to the content of a class on the Internet is available to students through a display in the classroom.

In addition, you can reproduce or publicly transmit a work after translating, arranging, or adapting it21.

e. “To the Extent Considered Necessary ” 22

In order for unlicensed use of a work to be permitted under Article 35, the use must be “to the extent considered necessary”.

Whether or not the use of a work is necessary for a class is, in the first place, a judgment to be made by the person in charge of the class. In that case, it is necessary to be able to objectively explain the necessity of reproduction or public transmission of the work in relation to the contents and method of the class, not only based on the subjective judgment of the person in charge of the class.

However, it is a difficult problem as to what type of use falls under “to the extent considered necessary”. According to page 8 of the “Operational Guidelines,” for example, it is difficult to explain the necessity in the following cases.

  • When one introduces references that are not used in class by reproducing or publicly transmitting the full text of a reference work, even though it is sufficient to indicate the title, author’s name, publisher’s name, etc.
  • Reproduction and public transmission of books and other materials that students are instructed to obtain for their own study as textbooks or reference books.

In addition, it is desirable that the number of times a work is reproduced or publicly transmitted should not exceed the number of instructors in charge of the class plus the total number of students enrolled in the class.

Article 35 stipulates the requirements for use without the author’s permission. However, even if those requirements are met, unauthorized reproduction or public transmission is not allowed if the action would unreasonably prejudice the interests of the copyright owner. In such cases, the authorization of the copyright holder is required.

What kind of use constitutes unreasonable harm to the interests of the copyright holder is a difficult question, as is the question of “to the extent considered necessary”. In general, the following types of use are considered to be unreasonably prejudicial to the interests of the copyright holder.

  • Reproducing or publicly transmitting a workbook for a qualification examination for students to solve as practice problems in class.
  • Systematically stocking works on a server (creating a database) for the purpose of creating a collection of materials, without clearly indicating whether or not they are to be used for teaching.
  • Reproducing a copyrighted work, for example, by binding them as a book, for commercial sale, or for long-term preservation.
  • Making and distributing one copy for each student when watching a recorded program in class. (Since it is usually considered that projecting the work on a large classroom display or on the PC monitors of each student is sufficient unless it is a special type of learning format in which students are required to manipulate the recording themselves.)
  • Reproduction or public transmission to a number of persons clearly exceeding the total number of instructors in charge of the class and students enrolled in the class.
  • Public transmission of educational materials using copyrighted works in large-scale public online lectures that can be accessed by anyone, such as MOOCs (Massive Open Online Courses)24.

In addition, the following considerations, which are particular to each type of work, are also relevant.

(1) Software

The following forms of use are considered highly likely to unreasonably prejudice the interests of copyright holders.

  • Purchasing one or only one license of a commercial application software and reproducing it on multiple school computers for use or providing it to students for public transmission.
  • Reproducing commercially available application software and providing it to students or transmitting it to the public to conduct computer programming classes.
  • Reproduction of application software such as document creation software, spreadsheet software, PDF editing software, etc. for use in class.
(2) Books, Textbooks (Workbooks), Magazines, News Articles, Etc.

First, the following cases can be considered as those in which reproduction or public transmission of the entire work does not unreasonably prejudice the interests of the copyright owner.

  • Haiku, tanka, and other short linguistic works
  • Newspaper articles
  • Articles, etc., published in magazines for which a considerable period of time has elapsed since publication
  • Papers published in journals, etc. (If the full text of the article is considered necessary for the purpose of the course and it is not necessarily reasonable for individual students to purchase the article, considering the proportion of the article in relation to the publication as a whole, the expected readership of the publication, the scale of distribution, the time elapsed since publication, whether it is easy or difficult to obtain, and other factors.)

On the other hand, the situation is somewhat different in the case of textbooks and workbooks.

With regard to textbooks that are usually purchased by instructors and students, or materials such as workbooks that are filled out directly by each student as exercises, it is likely to unreasonably prejudice the interests of the copyright owners to reproduce or publicly transmit such works to the extent that purchasing them is no longer necessary. However, additional reproduction or public transmission for the purpose of explaining a problem, such as displaying illustrations from a textbook on slides in a class, may be permitted.

In addition, concerning the form of use, there is a high possibility of unreasonable prejudice to the interests of the copyright owners in the following cases.

  • Using different parts of the same work in each session, such as reading one chapter of a book at a time, resulting in a large portion of the work being used in that class
  • Providing entire copies of literature that is not covered in class but that students may find helpful
(3) Art Works, Photographs, Etc.

Paintings, photographs, and illustrations are also works that are difficult to use in part. As a rule, reproduction and public transmission of the entirety of such works are considered to be permitted.

However, there is a high possibility of unreasonable prejudice to the interests of the copyright owners in the following cases.

  • Reproducing or providing bound copies of commercially available goods in sufficient quality as to affect the sales of such goods
  • Selecting many works from the same art book, printing them, distributing them in class, or scanning and uploading them to a server

Part 2: Specific Examples of Use of Copyrighted Works at Universities

In the following, we will give specific examples of the use of copyrighted works within the university, and introduce cases that are deemed a violation of the Copyright Law. Below is an explanation of Article 35 of the Copyright Law with specific examples taken from the Operational Guidelines.

1. Examples of Impermissible Use of Copyrighted Works Within the University 25

a. Examples of Impermissible Use of Copyrighted Works by University Members

This is an example where copyright use is not permitted even in the case of an educational institution such as a university.

  • School information sessions for prospective students, mock classes at open campuses
  • Faculty and Staff Meetings
  • Seminars for faculty and staff conducted as FD26, SD27 at universities
  • Extracurricular activities in higher education (club activities, etc.)
  • Volunteer activities (for which no credit is granted)
  • Parents’ associations
  • Lectures sponsored by community associations at schools and other educational facilities, lectures for parents and children sponsored by the PTA

When giving lectures or training or preparing handouts in these situations, use copyright-free images or works to create slides and materials.

B. Examples of Impermissible Use of Copyrighted Works in Lectures

The following examples use copyrighted works beyond the necessary limits for lectures, which may hinder the original distribution and reduce the sales of copyrighted works (that is, unreasonably prejudice the interests of the copyright owner). In such a case, it is an infringement of copyright law even if it is for class purposes.

(1) Reproducing Commercial Application Software
  • Purchasing only one commercial application software, or only one license, and reproducing it on multiple computers in the school to use or provide.
  • Reproducing the source code for a commercial software to be used or provided in computer programming classes.
  • Reproducing application software such as document creation software, spreadsheet software, PDF editing software, etc. to use or provide in the classroom.
(2) Reproducing a Movie or Program
  • Reproducing a film or program in its entirety to use or provide.
  • Saving entire videos or pieces of music on a computer beyond the extent necessary for class.
  • Making and distributing one copy for each student when playing a part of a movie or program for students to watch in class.
  • Making entire videos or pieces of music available for downloading and viewing by instructors and students at any time, beyond the extent necessary for class.
(3) Reproducing a Book
  • An instructor reproduces a workbook or drill book and uses it or provides it in class for all students to solve, including students who have not purchased the book, even though the book in question is intended for all students to purchase and use.
  • Reproducing or providing copyrighted materials from textbooks that are usually purchased by instructors or students, provided to educational institutions on a contractual basis, or lent to be used by instructors and students in class, as well as materials in workbooks that each student fills in directly as exercises28, in such as way that all the contents can be viewed without having the purchase the materials.
  • An instructor reproducing and distributing many parts of a book in one class: chapter 1 in the first class, chapter 2 in the second class, and so on, resulting in the majority of the book’s usage in that class.
  • Providing copies of all references that are thought to be helpful to students, even though they will not be covered in class.
  • The instructor scans all or most of the pages of a paper textbook, creates a PDF version of the digital textbook, and distributes it to students.
  • Reproducing all articles published in a periodical.
  • The instructor selects many works from the same art book, scans them, and uploads them as electronic files to the cloud or a server, from where students download them during class.
  • The instructor uploads a large number of novels, including those not directly related to their classes.
  • Uploading a video of a picture book reading to the cloud or to a server so that infants, children, and students can view them at any time from home.
(4) Reproducing Art and Photographs
  • Works of art, photographs, and other works that are not likely to unreasonably prejudice　the copyright, and for which full use is permitted, but which are offered in such quality as to affect the sales of goods on the market29.
(5) Public Transmission of Copyrighted Works
  • Publicly transmitting educational materials using copyrighted works in the form of large scale public online lectures that can be accessed by anyone.
  • Instructors uploading video clips of classes explaining textbooks and other materials school websites without protecting them with a password, so that anyone can view them, not just students.
  • Reproduction or public transmission to a number of persons clearly exceeding the total number of faculty members in charge of the class and the students enrolled in the class.
  • Publicly transmitting a work in an open network environment that can be accessed by anyone, such as on the website of the school or board of education or a video-sharing service.
(6) Preserving Copyrighted Works for Long-Term Use
  • Binding a work for commercial distribution or long-term preservation.
  • An instructor selecting dozens of photos from a photo collection, making color copies on paper, and binding them into a simple book to be used as teaching materials in classes for multiple years.
  • Stock works as materials (that is, make them into a database) on a server in an organized manner.
  • Reproducing a work in the form of a bound book for commercial sale or for long-term preservation.
  • Continuously recording and uploading TV programs to the cloud or on a server to create a library, in order to make them freely available in class.
  • The reproduction or binding of works of art, photographs, etc., of which full exploitation is permitted to the extent considered necessary, in such quality as to affect the sales of goods sold on the market.

The following example may be an infringement of the Right to Integrity, because the expression is different from the author’s intention due to the fact that the whole work was not used.

(7) Cutting and using portions of short language works
(8) Cutting out and using portions of paintings, photographic works, etc.

2. Examples of Impermissible Use of Copyrighted Works Outside the University

The following facilities do not allow the use of copyrighted works without permission, even if the purpose of use is educational, etc.

  • Companies and firms
  • Preparatory schools and cram schools that have not been approved as special training schools or schools in the “miscellaneous” category
  • Open colleges
  • Training facilities for companies, organizations, etc.

When lecturing, training, or preparing handouts for such facilities, use copyright-free images and works to create slides and materials.

References

  1. See Article 2-1-1 of the Copyright Act ↩

  2. See Article 10-1 of the Copyright Act ↩

  3. See Article 2-1-2 of the Copyright Act ↩

  4. See Article 31 of the Copyright Act ↩

  5. See Article 32 of the Copyright Act ↩

  6. See Article 35 of the Copyright Act ↩

  7. If you would like to know specifically what changes were made to Article 35 of the revised Copyright Act before and after the revision, please refer to the “The Compensation System for Public Transmission for Educational Purposes” of the Society for the Administration of Remuneration for Public Transmission for School Lessons (SARTRAS) (April 6, 2020, https://sartras.or.jp/wp-content/uploads/200406_seidoshiryo.pdf). ↩

  8. Enacted on April 28, 2020. ↩

  9. University, etc ↩

  10. See Article 35-2 of the Copyright Act ↩

  11. See Operational Guideline 6 ↩

  12. See Operational guideline 8. ↩

  13. See Operational guideline 7 ↩

  14. Organizational efforts by faculty to improve and enhance course content and methods ↩

  15. Systematic efforts to improve the quality of staff, including administrative management and education/research support ↩

  16. Refer to the operational guideline paragraphs 5-6 and 9 ↩

  17. See Copyright Act, Article 2-1-15. ↩

  18. See Article 2-1-7 of the Copyright Act ↩

  19. The University of Tokyo uses a learning management system called ITC-LMS. ↩

  20. See Article 23-2 of the Copyright Act ↩

  21. See Copyright Act, Article 6-1-1. ↩

  22. See Operational Guidelines 8-9. ↩

  23. See Operational Guidelines, paragraphs 9-20, especially 14-19. ↩

  24. Massive Open Online Courses : As of April 2021, a total of 19 courses are available on Coursera and edX at the University of Tokyo. Reference: University of Tokyo Massive Open Online Course (MOOC) https://www.u-tokyo.ac.jp/ja/society/visit-lectures/mooc.html ↩

  25. Citation: Revised Copyright Act Article 35 Operational Guidelines (2021 version) ↩

  26. Faculty Development : Organizational efforts by faculty to improve and enhance course content and methods ↩

  27. Staff Development : Systematic efforts to improve the quality of staff, including administrative management and education/research support ↩

  28. Including items that faculty members have instructed students to purchase. ↩

  29. Slogans, pictures, and photographs are copyrighted works in which the use of the entire work is unavoidable. In such cases, it may be judged that reproduction or public transmission of the entire work does not unreasonably prejudice the rights owner’s interests. The revised Copyright Act, Article 35, Guideline for Application (https://forum.sartras.or.jp/wp-content/uploads/unyoshishin_20201221.pdf), p. 10-11, cites a case where a work is shown as part of an image or in the background of a movie projected in class. as an example where the interests of the author are not unreasonably prejudiced. On the other hand, partial reproduction and public transmission of a work, for example, by cutting out only a part of the work, may constitute an infringement of the copyright law because it may be contrary to the author’s intention. It should be noted that the use of a work that is allowed to be used in its entirety without prejudice to copyright assumes that the work is not provided in a quality that would affect the sales of the work. ↩

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