“Out-of-Commerce” Broadcasting Archives: A Proposal on the Amendment of Copyright Act for Educational Purposes

With the use of ICT in Japanese schools advancing to full scale, there is a growing need for utilizing broadcasting archives, which are stored at broadcasting stations in enormous numbers, for school lessons and other educational purposes. Focusing on the issues concerning rights processing, which poses a challenge for the provision of broadcasting archives from broadcasters and other organizations to educational institutions, this paper presents the author's proposal for the new regulation of right restrictions (copyright limitations/exceptions) of the Copyright Act and examines the legitimacy of the proposal. The author proposes to redefine broadcasting archives that are difficult to process rights and almost unavailable in the general market as “out-of-commerce” and make them the subject to copyright limitations on the condition that they are used for educational purposes such as school lessons and distributed only to limited users. For the confirmation of its legitimacy, the author applied the three-step test, an internationally used standard. The paper also presents the effects and issues of the Extended Collective License (ECL). Even if the proposal is adopted, other issues will remain, including the network environment at schools and the authentication system. Nevertheless, the author argues that once these challenges are overcome, it will be highly possible for broadcasting archives to contribute to a number of societal needs.