일본에서의 표현의 자유와 저작권의 관계에 관한 이론적 고찰

Abstract

The rapid development of digital technology has significantly changed the environment surrounding copyrights, which have traditionally been the primary means of communication between analog media such as books, records, and canvas. However, in recent years, audio and word files have been widely distributed through these digital devices and across the Internet. Today, anyone can easily make a digital copy, edit data, and share information. It has become a daily occurrence to use the work of another person in a multitude of ways. At the same time, even amateurs who do not have sophisticated facilities can easily create and distribute their works at low cost, which authors and copyright holders of famous works are diversifying. At present, with the developments of communication and information technology, it becomes questionable whether an individual can carry out the most reasonable acts of expression and transmission without violating the copyright of others. When people express or issue things, it becomes a matter of concern to the Constitution if the possibility of copyright infringement goes too far in the individual’s mind that they avoid the act of expression itself or they decide to deliver it in a different form altogether. If copyright law could have atrophic effects on freedom of expression, will constitutional problems arise? Although copyright is a right directly related to expressive activities, it is only recently that its relationship with the freedom of expression, as stipulated by Article 21 of the Constitution of Japan, has been seriously discussed in the region. In recent years, research on this issue from the perspective of both copyright law and constitutional law has been actively increasing in Japan. Given the present theoretical circumstances, it is noted that the object of copyright law, the promotion of creative activities, can be found in the same direction where freedom of expression is sought. Discussions are divided over the position of the U.S. Supreme Court, which considers copyright law as an engine of the freedom of expression, and on the other hand, it has been argued that there is a conflict between the freedom of individual expression and copyright law. However, some people are inclined to take the view of the U.S. court and insist on accepting it positively. Can copyright law be the engine of the freedom of expression? Even if it were the engine of the freedom of expression, could the conflict between the two rights be eased by this connection? To answer these questions, first, the structure of the relationship between copyright and freedom of expression must be defined, taking into account the nature of copyright and the problems that arise during the legislative process. In considering the constitutional review of copyright laws, the researchers first look at the constitutional position of copyright. The Japanese Constitution does not include words such as “copyright” or “intellectual property rights,” and the definition of copyright concerning the Constitution is not always clear. As mentioned above, the Constitution of the United States has provisions on patents and copyrights. However, this sits in contrast to the fact that even though the Constitution guarantees patent rights and copyrights, Congress has the power to enact laws on them. Does that mean copyright is not constitutional? In Japan, the relationship between copyright and freedom of expression has been frequently discussed in recent years, and there are limited references regarding the legal position of copyright. The concept of “expression” in freedom of expression is thought to have expanded in the hopes that it protects the possibility of new dialogue obtained from the daily development of technologies. However, that does not mean that the scope of freedom has been extended without delay, but it is important to note, at least here, that new technologies have given rise to some depth in the qualitative aspects of the concept of freedom of expression. Also if individuals control the communications that have been made possible by new technologies through the constraints provided by things like copyright law, they will not be able to enjoy them. The researchers have examined the relationship between copyright and freedom of expression. What was found was that copyrights can be engine and control systems for freedom of expression and that copyrights are reexamining the necessity of the freedom of expression, including the protection of the rights holders. Moreover, with the development of digital technology and the Internet, this relationship seems to be in disarray. Changes brought about by the spread of these technologies have certainly affected the relationship between the tension of copyright and freedom of expression. The development of the varied means of expression and the use of works has led to an increase of authors and users, increasing the probability that copyrights more directly affect people's freedom of expression as the relationship between the freedom of expression gets tenser. Now that society exists in a digital age, the researchers call for the freedom of copyright and expression, and establishing some means to coordinate the two rights is an urgent task.