A recent feature in the Tokyo Shimbun looked into a conundrum that few people know about. Fifty-two years after his death, Ernest Hemingway remains one of the most popular novelists on the planet. Translated into dozens of languages, his books continue to sell well. Whether those works are now in the public domain depends on each individual country’s copyright laws. In Japan, the copyright for written works is protected for 50 years after an author’s death, but if you look at Hemingway’s individual novels there’s something strange. “The Old Man and the Sea,” which was published in 1952, is now a public domain work in Japan, but “For Whom the Bell Tolls,” published in 1940, is not, and it won’t be until 2022.
The reason for this discrepancy is a term included in the San Francisco Peace Treaty that officially ended the Pacific War when it was signed in 1951. This term in Japanese is called senji kasan, which in the body of the treaty is explained as a “wartime add-on to the protection period” of a particular work’s copyright. In other words, during the war, Japanese users of copyrighted works from the 15 countries aligned with the Allied cause did not pay fees and royalties to those copyright holders, so the period of that non-payment, from the declaration of war in 1941 to the signing of the San Francisco treaty, was added on to the regular copyright protection period in order to collect fees “retroactively.” Moreover, this add-on period was calculated in days, since each of the fifteen countries concluded the treaty at different times. For instance, Lebanon didn’t sign until Jan. 17, 1954, which means the add-on was 4,413 days.
What’s unique about senji kasan is that it only applies to Japan. The other two Axis powers, Germany and Italy, were not obligated to implement the add-on. Actually, Italy was supposed to have been obligated, albeit for only five years, but the country’s government negotiated with each of the Allied countries and eventually had the protection extension cancelled in 1993 when the European Union was being formed. France also had a similar extension condition domestically, since for much of the war it was occupied by the Nazis, but it expired a long time ago. According to Tokyo Shimbun, copyright experts tend to agree that the SF treaty extension is discriminatory and is merely a lingering remnant of the Allies’ will to punish Japan. But the war ended in 1945. Isn’t it about time the extension was rescinded?
As it turns out, the problem is not really the countries who benefit from this extension. According to one expert interviewed in the article, the problem is that the Japanese government “accepted the extension as punishment, a term of surrender,” and thus feels an obligation to pay, even now. None of the Japanese administrations that have been in power for the past 50 years even bothered to address the issue. It is simply a matter of laziness. If Japan wanted to get rid of the extension it would be relatively easy but time-consuming, since it would entail negotiations with each of the fifteen countries that signed the treaty. Some have said that the controversial Trans-Pacific Partnership talks provides a perfect venue for discussing the matter.
Then again, there are some powerful parties in Japan who benefit from the extension, such as the Japanese Society for Rights of Authors, Composers and Publishers, which collects the royalties for foreign copyright holders. JASRAC charges copyright users a handling fee, so the more royalties there are to collect, the more money they make. In 2010, JASRAC made ¥280 million from collecting senji kasan royalties. The point is, with all the global anxiety over pirating of intellectual property, foreign copyright holders have it good in Japan, where people and companies tend to pay their fees without grumbling. JASRAC guarantees it.
But the extension is a big pain in the neck, and thus ends up costing more than just the money spent on royalties. As a representative of the Japan Arts Copyright Assoc. told the paper, many authors change nationality, and since each country has a different copyright law, it’s difficult to keep track of a particular work’s protection period. The paperwork can get really complicated and expensive. Moreover, users can’t be sure whether or not they have to pay.
A Japanese music academy that specializes in German music had a problem some years back when it performed a piece by the German composer Richard Strauss. Since Strauss died in 1949, the academy thought the work was in the public domain, but it turned out a British publisher had bought the copyright some years ago and British copyright law was different than German copyright law. The publisher demanded royalties based on senji kasan. The academy fought the demand in Japanese court and won, but the experience was traumatic. It’s why Japanese musicians tend to not play 20th century works. Royalties for foreign compositions tend to be very high, and since performers aren’t sure whether or not a work is in the public domain, they play it safe and just stick to Beethoven and Mozart. There are also isolated cases of overseas publishers fraudulently charging royalties for works that are in the public domain and Japanese users who don’t know any better paying them.
The issue is just getting more complicated. In 1998 the United States extended its copyright protection period to 70 years after an author’s death, and has been pressing Japan to do the same thing. At that rate, “For Whom the Bell Tolls” will never be in the public domain.
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