This paper deals with the recent emergence of highly controlled architectures for digital content delivery in Japan. It investigates the architectures’ socio-economic impact on the creation of new materials and on the development of electronic devices that come into contact with digital content.

New creations always build on the past — this is also true for Japan, which is interestingly often considered as having a deeply rooted culture of innovation through copy and imitation. Recently, however, the Japanese content industry is gradually increasing its control over what happens with content after its distribution, and thus, preventing it to be (re-)used in innovative ways — this controllability is achieved by Digital Rights Management (DRM) schemes embedded in high-end electronic devices such as mobile phones and digital TV sets.

In my paper I take a closer look at the implementation of DRM schemes and analyze what effect they have on the use and re-use of the content they aim to protect. I argue that the scope of this protection is much wider than it should be; in essence, every use that is not specifically permitted by the content provider is in fact prohibited. Moreover, adding DRM to the materials they distribute places the content providers in a very powerful position: They enable themselves to control the architecture and development of the downstream devices that process their digital content. Control of such an extent has or will have a stifling effect on innovation in Japan both on the content production level as well as on the content carrier/editor development level — a very unpromising outlook indeed. In this respect, I question whether the Japanese content industry’s current DRM tactics are the way to go — possibly rethinking and adjusting business models may ultimately prove to be a more viable solution.

Introduction

In the first episode of his famous “Astro Boy” comic series, Tezuka Osamu depicts how — one day in the year 2003 — a boy named Tobio is cruising in his “hovercar” through a futuristic city. (1)(2) The car’s speed and navigation are controlled by the highway itself, so as to provide for a safe driving experience. However, suddenly things go wrong and Tobio gets killed in the ensuing accident. His father, a famous scientist, is beyond himself in tragedy and hence decides to create a robot version of his unfortunate son — Astro Boy is born! (Tezuka 1975)

In 2005, it is now clear that Tezuka’s view of the beginning of the 21st century was overly futuristic. Today, cars still have four wheels and highly controlled, self-enforcing transport architectures are only a conceptual dream; that is of course, as long as we are talking about physical transport architectures. Architectures for the distribution and transport of digital content, on the other hand, have become very strict and operate similarly to the highway Tobio was driving on; they do not allow the slightest deviation of a predefined set of values or possibilities. This is also the case for Japan, which is both an important content provider and a major producer of devices for transferring and storing digital data.

Commonly, these devices are first launched on the home market and distributed internationally at a later time. Thus, investigating Japan’s current technological landscape gives us an outlook on the content processing devices we might expect to appear in other markets within a short time frame.

In order to achieve a better understanding of what is going on and why highly controlled digital content architectures are a potentially hazardous evolution, I will first shortly elaborate on the complex relationship existing between content creation and the concept of copyright. Concurrently, I will focus on how the architectures mentioned above are realized, and hence aim to investigate how they both influence and constrain the way we deal with information.

1. A complex balancing exercise

Japan is often viewed as a “copy culture,” commonly acquiring foreign concepts and in turn tweaking, improving, and remixing them into something new. An illustration thereof is the well-known Matsushita/Maneshita pun — Matsushita Denki, a Japanese electronics giant also known as Panasonic, tends to “analyze foreign products and figure out how to make them cheaper,” (Johnstone 1994) resulting in consumers and competitors referring to the company as Maneshita Denki, literally meaning “We-imitated” Electrics. However, Matsushita is not the only company following such a strategy. In the 50s, Sony acted in a similar way when developing its famous transistor radio. The company improved and built upon the research done by American engineers, with the Sony transistor radio as the popularly successful result. Another example, in the field of trademarks and branding, is the Starbucks v. Excelsior issue. In short: Starbucks entered the Japanese coffee shop market in 1996, offering a Western alternative to the local and maybe slightly old-fashioned Doutor outlets. Doutor decided a counterattack was the best defense and launched its Excelsior-branded shops, sporting a Starbucks-like logo and providing a similar atmosphere and service, only a bit better — you can also have a sandwich or other food at Excelsior, while Starbucks only offers coffee and sweets on its menu. (Lewis 2003) Adopt, tweak, and sell.

Returning to Astro Boy, we can observe a similar pattern: The story is reminiscent of the Pinocchio tale while the hovercar concept may have been inspired by futuristic transportation ideas of the 50s and 60s. (3) Tezuka picked elements out of a common cultural pool — Pinocchio and futuristic car models constituting a part thereof — and rearranged them to create a new product. To draw the line further: That is also what dojinshi authors do today, when they produce bootleg like variants of well-known Japanese comics. Although the concept of creating-by-remixing might have taken a bit of a peculiar form in Japan, it is certainly not unique to Japan. To give a well known and rather controversial counterexample: Disney’s 1994 movie “The Lion King” is often said to have borrowed significantly from Tezuka Osamu’s “The Jungle Emperor,” which was produced in 1965. (4) Tezuka Productions didn’t sue; “If Disney took hints from ‘The Jungle Emperor’, our founder, the late Osamu Tezuka, would be very pleased by it. Rather than filing a claim, we would be very happy to know that Disney people saw Tezuka’s work.” (Takayuki Matsutani in an interview by C. Buress, cited in Mehra 2002, 1)

The aforementioned examples show that the act of reusing and copying concepts plays a fundamental role in the creative process. However, reproduction is also part of how people enjoy works, that is, after they are created. Examples include videotaping for personal use, copying an article for classroom use, making a copy of a CD in order to listen to it in your car, ripping, converting and transferring tracks to your shiny MP3 player, etc.

Although copying cannot be thought as separate from creating and enjoying culture, it is argued that too much copying might diminish an author’s will to create. (5) It is here that copyright comes in: It gives authors a sort of monopoly over their works that is limited both in time and in scope. (6) By doing so, governments try to create more incentive for authors to start making new products, while at the same time ensuring sufficient public benefit. The Japanese Copyright Law (JCL) is no exception: Its main goal is “to contribute to the development of culture” (Article 1, JCL) and rights are granted only for a limited period. (Articles 51-58, JCL) Further, a defined set of so-called limitations on rights creates space for private and educational copying, quoting, etc. (Articles 30-50, JCL) (7) By way of this complex mix of rights and limitations, the JCL tries to strike a balance between the public and the private, thereby ensuring a rich cultural sphere to which the public has access and on which future creators can build.

Recently, however, this balance is being disturbed by new legislation and, more importantly, by new content distribution architectures. What is going on?

Alerted by the recent spread of new technologies that enable even non-technically savvy people to easily copy and share digital content, the content industry has started a wide-scale offensive against what it considers a rampant infringement of its intellectual property rights. Although mainly fueled by its American and European counterparts, Japan’s content industry lobby has actively supported this policy and the Japanese government has been openly receptive to it. (8)(9) This resulted in several changes within the legislative framework. A few examples can illustrate this: Japan’s copyright protection terms have been extended in the context of international harmonization; alleged copyright offenders are actively tracked down and brought to court; punishments for copyright infringement have been increased and on Jan. 1, 2005, two controversial amendments to the copyright law came into effect — the right of rental for books and magazines and the right of import for recordings. (10)(11)(12)(13) These measures obviously only strengthen the content producer side of the creative story; the interests of consumers and future creators remain largely ignored.

There is more; in 1999, the Japanese government introduced new legislation concerning the circumvention of technological protection measures, thereby putting technology and content producers in an extremely powerful position. To explain why this is the case, I will first shortly elaborate on the concept of digital architectures and then go on with an analysis of the content protection mechanisms embedded within a growing percentage of Japan’s high-end electronic devices.

2. Digital architectures and content protection mechanisms

Real world architectures guide and constrain people’s movements and behavior. Governments and businesses know this; hence the inclusion of certain value sets within those architectures. A simple example is a speed bump; by slightly changing the architecture of a road, the government can easily enforce the speed limitation rules it created, thereby ensuring a very high degree of compliance — cars that take the speed bump too fast risk serious damage.

The same is true of digital architectures. These architectures are not physical, but instead consist of computer code. In other words, the values — one could also call them features or bugs — of digital architectures are implemented through the code the program or digital device is made of. (14) This means that digital architectures, just as physical ones, are self-enforcing and thus very effective in ensuring compliance. To be more precise, they are maybe even more successful in this than physical architectures, as they theoretically allow for almost complete control. Governments and businesses know this, also. (15) In general, this is the fundamental matter of concern for this paper.

An example to illustrate this controllability aspect; in the beginning of 2004, Sony launched its first Librié e-book reader on the Japanese market, promoting its revolutionary paper-like display and extreme portability. Librié users purchase e-books from Sony’s online Timebook Town bookstore and then transfer them from their computer to the Librié device. (17) Sony’s proprietary Digital Rights Management (DRM) technology OpenMG enforces a no-copy policy vis-à-vis the downloaded e-books. (18) This might appear as a fair precaution to protect the right holders’ interests; a technological barrier after all, prevents people from making illegal copies of the works they purchase. However, OpenMG also prevents the kind of copying that is allowed in the context of limitations on rights; copying a few pages for academic use, or extracting the text in order to have it read aloud by text-to-speech software on your computer is not possible. Moreover, it does not take into account whether or not the e-book content is in the public domain — Librié e-books in a DRM encumbered format are the default and only setting. That’s not all: OpenMG restricts the whereabouts of the content it is wrapped around in an even more intrusive way; exactly two months after an e-book is acquired from Sony’s online bookstore, it becomes unusable — deleting it from the Librié’s and your computer’s hard drive is the only available option. (Lytle 2004) (19)

Sony’s Librié is a clear example of how computer code can be used to create a restrictive framework for distributing content that allows for far greater control than real world architectures — books that do not allow copying and become unreadable after two months have yet to be “invented.” Moreover, these DRM mechanisms enjoy a certain legal protection. For instance, both Japan’s Copyright Law and Anti-Unfair Competition Law (JAUCL) prohibit the trafficking of DRM circumvention tools. (Article 120bis(1), JCL; Article 2(1)(10)(x), JAUCL) (20)

Furthermore, Article 30(1)(2) of the JCL stipulates that reproductions for personal use that become possible by circumventing technological protection measures are not allowed. This basically means that personal copies, which are otherwise allowed under the scope of limitations on rights, are legally and technically compromised when the content involved is protected by a DRM mechanism. Getting around the two month limit of your Librié e-books thus becomes a nearly impossible matter; tools that allow you to circumvent the built-in DRM are hard to find as making them public would constitute an infringement against the JCL and the JAUCL. Additionally, in case you find a way around the Librié’s DRM, Article 30(1)(2) of the JCL prohibits the creation of a copy in an unencumbered format for later private use. (21)(22) It is worth noting, however, that there is no law that says you have to read books within two months after purchasing them. A quote of Lawrence Lessig summarizes what is going on: “Code becomes law; code extends the law; code thus extends the control that copyright owners effect […].” (Lessig 2004, 160) (23)

One might wonder whether the Librié’s restrictive DRM scheme is really such a big deal. It probably isn’t, simply because, at least for the time being, there are alternatives; almost all e-books on the Timebook Town Web site are also published in paperback or hardcover format. Also, e-books that are in the public domain can be downloaded for free from Aozora Bunko, and you can read them on your laptop or PDA in an unencumbered format. (24)

However, when there are practically no alternatives, the situation is different. An example is the Japanese market for mobile phone content where DRM is not a choice, but a given — in the new generation of Japanese cell phones DRM is the standard. Another example is digital television, which is scheduled to completely replace Japan’s analog TV broadcasts in less than a decade.

In the next sections I focus on the DRM mechanisms that are embedded in Japanese mobile phones and digital TV sets, and hence explain how they can be used by the technology and content industries as strategic tools that considerably raise the bar for future content producers and innovators.

3. Mobile DRM in Japan

When buying a cell phone in Japan, you get much more than only a device you can call and send short text messages with. Most Japanese mobiles also sport a camera for taking pictures and short videos, they have a mail client and Web browser built in, and their high resolution color screen is a pleasure for any eyes. Other features include support for (downloadable) arcade games, advanced agenda and tasklist functions, and expandable flash memory or a Bluetooth/infrared port, allowing you to exchange data between your computer and cell phone. The latest models go even farther than that and function in a credit card-like fashion; instead of buying a ticket for the subway, you simply hold your osaifu keitai or “wallet mobile” close to a card reader at the station’s ticket gate — the gate opens and money is debited from your bank account. (25) There are several other interesting functions worth mentioning, but that would lead us too far off course. The central point is that Japanese cell phones are more than only portable telephones — they are high-end information processing units, featuring an impressive set of functions. It is in this informational context that DRM comes in — tightly integrated within the cell phones’ closed firmware, it is part of the set of functions you buy. Although cell phone makers don’t seem to have settled on a general standard yet, some form of DRM seems to be present in all recent Japanese cell phone models. In other words, choosing a DRM-free Japanese mobile phone is simply not an option. This is in opposition to the PC and software market, where DRM can be resisted because one has a choice — pro-DRM manufacturers are yet to come up with a way to make consumers start using only DRM-responsive software. (Lettice 2004)

How does this mobile DRM actually function? Generally, it locks content to the cell phone it was downloaded with, not allowing any kind of reproduction. For example, the Japanese Sony Ericsson A5404S cell phone does not allow downloaded content with a specific “copyright tag” (images, games, chaku-mero and the more recent chaku-uta) to be copied in any way. (25)(27) This includes forwarding protected content by e-mail, moving it from the cell phone’s own memory to the removable flash memory card, or incorporating it in a screensaver-like animation. This also means that, when buying a new mobile phone, you often lose the paid content you’ve previously downloaded. There is no way to take a backup — the content is and remains locked to the device it was initially retrieved with. Version 1.0 of the Open Mobile Alliance (OMA) DRM, which Japanese cell phone makers have also started to implement, goes yet a step further. (28)(29)(30) OMA DRM 1.0 automatically disables the forwarding of certain types of attached content; that is, it presumes that certain file types sent along with e-mails cannot possibly be the intellectual property of the receiving cell phone user. (31) This results in the blocking of any subsequent forwarding. Sending a friend a bitmap file you’ve just received is not possible since the bitmap file format is on the OMA DRM 1.0 file-blocking list. In addition, OMA DRM 1.0 features a forward-lock encryption mechanism, enabling content vendors to lock content to the device it is purchased with and thus working in a similar way to the A5404S’s DRM. Another OMA function is the so-called combined delivery system, which allows forwards of content, but only after adding a time limitation to the file that has been forwarded. The receiver then can view the forwarded content, but only for a week or so. After this period of time, the file is rendered unusable. A slightly different variant is the so-called separate delivery concept: Users can forward content, but in order to access the attachment, the receiver is required to purcase a license from the content provider. (Lettice 2004)

In addition to the DRM that is integrated inside Japanese cell phones, mobile variants of flash memory cards, such as Memory Stick Duo, miniSD, and the upcoming Mopass card, have DRM mechanisms embedded, inhibiting the process of importing or exporting certain types of content. (32)(33)(34)

To summarize, the Japanese mobile phone universe is clearly a lot more colorful than its Western counterpart — cell phones are packed with fairly advanced features and connecting them to the Internet is extremely simple. This transparency and scalability makes them, in contrast to most Western cell phones, in many situations the most evident devices for accessing and processing content. However, as strict DRM is part of the default feature set, the ways in which one can process such content are severely hampered. The built-in DRM schemes all follow the same logic; everything that the content provider does not specifically allow is in fact forbidden. Such a regime inevitably has a serious impact on how people enjoy, use and reuse content on their mobile devices. It is to be feared that this high level of control will also have a chilling effect on future creations, which always build on earlier produced content in one way or another (cfr. supra).

Some might question whether mobile DRM schemes indeed (will) have a serious impact on how culture is enjoyed and reused in Japan. As an answer, let me shortly point to three recent developments in the cell phone market that add some further contrast to the analysis above.

First, there is Japan’s cell phone penetration ratio — with 62.7 percent of the Japanese using a mobile and with 2.6 years as the estimated average replacement time in 2004 (Gross 2004), the infiltration level of mobile DRM can hardly be underestimated. Secondly, recent developments in the Japanese mobile phone market show that cell phones have slowly started converging with PDAs, resulting in the development of touchscreen enabled smartphones and the like. (35) The editing capacities of cell phones can thus be expected to improve drastically, even overcoming the hurdle of text input through alphanumeric keypads. And thirdly, there is the Open Mobile Alliance’s recent push towards further standardization. (36) With the improvement of service interoperability between cell phones as its major goal, the OMA tries to pursue its mobile agenda, the standardization of the OMA DRM 2.0 spec being part thereof. In other words, mobile DRM is here to stay, the number of smartphone-like devices supporting it will increase and its Japanese user base will likely further expand.

4. Beyond simple content protection

So far my analysis has mainly focused on how DRM is deeply incorporated in Japan’s mobile content distribution system, protecting commercial content by blocking reproduction of any kind. There is more to DRM than only content protection, though. DRM is also used by technology companies and the content industry as a legal weapon against disruptive technologies that may undermine their business models. I will explain how this is possible. When a technology platform’s interface is closed or poorly documented, interoperability can only be achieved by means of reverse engineering. By doing so, other companies get an idea of the platform’s underlying structure and they can start creating interoperable platforms and applications, thereby possibly threatening the original developer’s market share or thwarting his plans in complementary markets. It is here DRM plays an interesting role; by incorporating DRM into the platform, interoperability is complicated both in a technical and a legal way. (See also Bechtold 2003, 19-630)

Technically, DRM obfuscates the platform’s architecture, thereby raising the bar for reverse engineering substantially. Creating complementary applications that hook in on a DRMed platform, or even building an alternative interoperable platform, thus may require a lot of resources.

The distribution of complementary applications may also be a risky business from a legal point of view — making things compatible often requires circumvention of the platform’s built-in DRM mechanism, thus creating a hazardous legal situation once the application goes public. Although lawsuits have been limited thus far, the AiboPet case gives a perspective of what might happen in other markets.

The Aibo is a robot dog developed by Sony. (37) The device is able to perform a number of tasks and can interact with people while expressing “emotions.” These emotions are steered by computer programs in the Aibo’s brain. A customer who wants to teach his dog new tricks or change its character can purchase new software from Sony and install it on his Aibo by means of a Sony Memory Stick. An Aibo enthusiast and programmer, calling himself AiboPet and operating a Web site with the same name, found a way to hack his Aibo so as to make him, among other things, jazz dance. (38) In order to make his software work, AiboPet needed to circumvent the Aibo’s Memory Stick DRM mechanism. (39) When he decided to share his software hack with the Aibo community, Sony sent him a letter asking to take it down, stating it constituted a violation of the anti-circumvention provision of the (American) Digital Millennium Copyright Act (DMCA). (40) At first sight, Sony’s move might seem odd — AiboPet did not release the Memory Stick’s encryption code nor did he make any money out of it. On the contrary, Sony could have benefited from the situation and attracted more customers by showing off the Aibo’s potential. Instead, it threatened with a lawsuit. The reason for that is simple: Sony wanted to maintain control over which complementary applications are built on the Aibo platform, so that its business model in this sector would not be disturbed by disruptive technologies redefining what people do with the devices they own — imagine a third party creating a piece of software that adds the functionality Sony has in mind for a next generation Aibo robot dog. As the software on AiboPet’s site circumvented the Memory Stick’s DRM, Sony had a reason under the anti-circumvention legislation to crack down on AiboPet. Which it did, resulting in the closure of the AiboPet site. (Bechtold 2003, 623; Burk 2002, 24-25; Labrador 2002; Lessig 2004, 153-157) It was only after protests of the Aibo fan base that Sony reconsidered its policy. The AiboPet site is running again and Sony has even released an official development kit allowing people to hack their Aibo — for non-commercial use only, of course. (Middleton 2002)

A similar scenario could play out in the mobile phone market. Considering the upcoming convergence of cell phones and PDAs, one can expect the demand for modifiable devices to increase. Customers will then be able to add functionality to their cell phones in a similar manner as they install software on a computer. (41) Of interest here is the way in which Japan’s mobile phone manufacturers will make that very transition. A possible strategy would be to open their products and allow any developer to freely build applications on top of them. However, the opposite is more likely to happen: DRM encumbered devices that, similar to the Aibo model, only allow “certified” software to be installed. (42)As such, manufacturers will be able to control what software runs on their platform, meaning that they can keep a strong foothold in the aftermarket of complementary applications. Stefan Bechtold: “[…] by wrapping technology platforms in a DRM system, DRM can be used to control downstream markets and channel innovation.” (Bechtold 2003, 629)

Note the impressive payoff: In order to protect its business and shield it from competition, a company can prevent others from improving upon the devices it produces — all through DRM.

5. The role of the content industry

Digital Television or DTV is slowly finding its way to the average living room in a number of countries, Japan being one of them. (43) Although satellite DTV has been around for a while, it is expected that Digital Terrestrial Television (DTTV) will be a major turning point and replace the current analog broadcasts. The advantages are said to be plenty: High resolution broadcasts, improved interactivity and view-on-demand functionality, to name a few.

The Japan Broadcasting Corporation (NHK) launched its digital terrestrial broadcast service in December 2003 and has plans for outphasing analog broadcasting signals by 2011. (44) Whether this is a reasonable estimate or not remains to be seen. Similar plans in other countries have been delayed because of the enormous amount of television equipment that has to be upgraded and the public being slow in doing so. (45)

During the spring of 2004, however, Japanese DTTV companies had to cope with a flood of complaints from their customers. The reason was that, from April 5 on, NHK and other commercial broadcasters started airing their programs with a special transmission signal or broadcast flag enforcing a so called copy-once regime on the content broadcasted — programs can only be copied one single time (e.g. on a writable DVD). (The Japan Times Online 2004) On top of that, a so-called conditional access system (CAS) controls who can access the broadcasted or recorded program. In order to watch DTTV programs, the user needs to insert a B-CAS card into his TV — removing the card stops DTTV reception. (46) For viewing recorded materials, you also need a B-CAS card, that is, the same card as used when the program was recorded. This means that trying to view the recorded DVD you borrowed from a friend will result in a screen showing an error message.

Although the copy-once system seems to be the current NHK policy, this doesn’t imply that other broadcasters need to adhere to this regime. In the words of the NHK Open House 2004 Web site: “The broadcaster can set up detailed control conditions in relation to digital content usage. The viewer can choose among diverse viewing styles under the control of the broadcaster.” (47) It continues: “[W]hen the viewer wishes to watch expired content, he or she can obtain a license with a new expiration date [via broadcasting or a communications network].” This means that also copy-once-with-expiration-date or copy-zero systems are among the possible options. This severely restricts the way consumers can use and reuse digitally broadcasted content and corrupts the original finecrafted balance between the author and the public.

It is often said that fears of piracy are the reason for this kind of system — when going digital, broadcasters want to be sure that their content won’t be copied and shared on the Net. However, Cory Doctorow points out that broadcast flags won’t stop unauthorized copying and filesharing at all; “There’s nothing to stop people from connecting the analog outputs (cable, composite video, etc) of their receivers to their computers and capture the shows that way — in fact, that’s how all the TV programs circulating on the Internet today are captured.” (Doctorow 2002) Then why do Japanese and other broadcasters insist on DRM protection when going digital? Ernest Miller provides an interesting (and plausible) insight: “The straightforward answer is that DRM provides the content industries benefits that are unrelated to or only loosely related to stopping content from getting onto filesharing networks.” What are those benefits? Miller continues: “By insisting on […] DRM […], the content industries are in a much better position in negotiating how technology will be permitted to develop. If the content industry thinks that a particular new device is too disruptive, they can lock it out of using their DRM’d content legally, something that copyright law would otherwise not allow.” (Miller 2004) In other words, broadcasting companies (and other content providers) can use DRM as a tool for protecting their business model by outlawing devices that allow their content to be used in too innovative ways — without DRM, the broadcasters’ attempts to influence the technology companies would have far less effect. (ibid.) (48)

Note that we see a similar pattern as in section 4 — DRM is used to prevent developers from being too creative. The difference however is that, when devices touch high-quality content such as digital broadcasts, not the technology business, but instead the content business becomes the main player in the strategical DRM game. To use an analogy, we slowly come into a situation in which “people who make records [are having] a veto over the design of record-players.” (Doctorow 2004)

Applying this analysis on the earlier mentioned chaku-uta phenomenon provides some interesting insights. Before KDDI launched the first chaku-uta service in the end of 2002, chaku-mero, melodic versions of popular songs and often DRM-free, were the big hype. As chaku-mero are actually covers, paying a fixed fee to the Japanese Society for Rights of Authors, Composers and Publishers (JASRAC) gave content providers the permission to distribute them. Neighboring rights not being an issue, the record companies didn’t see any direct income from this practice. (49) That changed when the first chaku-uta services were launched, the biggest provider being the Japanese music industry’s own flagship, Label Mobile. (50) In contrast to chaku-mero, chaku-uta are real remixes of songs, which means that besides copyright neighboring rights also come into play. (The Daily Yomiuri 2004; Trends in Japan 2004) Thus, by redefining the concept of ringtones to ringtunes, the music industry managed to give itself a key position in the Japanese cell phone melody distribution landscape. That position became even stronger when also DoCoMo and Vodafone decided to jump onto the chaku-uta bandwagon. It may thus not come as a surprise that DRM was agreed upon as a necessary part of chaku-uta distribution channels. This chaku-uta DRM works quite well as an anti-copying mechanism, but that is probably not the only reason why the music industry introduced it. (51) Just as is the case with the broadcast flag, insisting on DRM inside mobile music puts the record labels in a position where they can control the architecture of future cell phones — devices that allow too-liberal use of the labels’ content and thereby threaten their business models can be kept out of the market easily. We can thus expect future developments in the Japanese mobile music market, such as downloads of complete songs, to be encumbered by the music industry’s strict DRM mechanisms.

As one can guess, not only the music industry will make the leap to mobiles. Japanese broadcasters such as NHK also have clear plans to target the Japanese cell phone market with TV-like content. The development of KDDI and DoCoMo prototype models that can receive DTTV broadcasts are a clear indication of technology makers and content providers moving in the direction of mobile digital TV. (Mochizuki 2004; Horikiri & Uno 2004) The implications of this evolution are impressive; not only the record labels, but also the broadcasting companies will have their say over how future mobile phones will be able to deal with the content they touch, thus slowing down innovation and burdening the public with DRM bloated devices.

6. Conclusion and outlook

When investigating the devices that make up Japan’s technological landscape, we can clearly see a trend towards the implementation of content protective measures. However, the reach of these measures goes far beyond the prevention of piracy.

Firstly, by prohibiting any kind of reproduction of certain types of content, Japan’s technology and content industries also block legal copying, such as copying in the context of limitations on rights. Also important to note is the fact that thus far unregulated uses, such as not reading a book immediately after purchase, suddenly start entering the sphere of regulation (cfr. the Librié’s two-month expiration date).

Secondly, the use of DRM places the technology makers, but even more the content industry, in a position to control innovative processes; they can steer which devices are technically and thus legally allowed to process certain types of content, something that is far more than the copyright law ever granted. It is in this context Dan L. Burk points to the emergence of a paracopyright concept, effectively “allow[ing] copyright holders a new method to control competition and innovation beyond the market for protected content.” (Burk 2002, 20)

We can thus conclude that with Japan’s wide-scale move to DRM inclusion in digital devices, the subtle balance between authors and users is severely disturbed. This does not only affect the ways in which people can enjoy creative products, but it also has an underestimated effect on content production and the advance of technology. In other words, the idea of “creating” as not only a constructive, but even more a reproductive process remains largely ignored — as well as on the content as on the technology level — thus, putting into question Japan’s creative future.

It is far from clear how this situation will evolve. If the transition to digital television doesn’t go as smooth as originally planned, the 2011 date for pulling the analog broadcasting plug may be postponed a few more years. However, as the Japanese government has an interest in reselling the spectrum that is needed for analog broadcasting, it is doubtful that the current analog/digital situation will continue for much longer — and once Japan goes digital, DRM is part of the set, as far as the content industry is concerned.

Evolutions in the Japanese cell phone market are even harder to predict. As said, PDA-like devices will probably soon become the standard, but strict DRM may spoil a lot. Further, as storage space continues to become smaller and cheaper, mobiles with audio player-like functionality are on the verge of breaking through; whether these devices will play common audio formats such as MP3 remains an open question. (52) Support for MP3 in combination with protocols like Bluetooth, for example, would allow for local area filesharing with your friends or even your fellow train commuters, thereby rendering DRMed formats somewhat obsolete. In the words of John Lettice: “Interesting times ahead.” (Lettice 2004)

As culture and technology only survive when they are allowed to interact with and plug in on what came before, openness instead of protectionism is the way to go for the Japanese content and technology industry. Of course, this won’t be an easy task; business models will need to be rewritten and some businesses may disappear, while others will emerge.

To conclude, a quote of Cory Doctorow criticizing Sony’s continued DRM efforts: “No Sony customer woke up one morning and said, ‘Damn, I wish Sony would devote some expensive engineering effort in order that I may do less with my music.'” (Doctorow 2004). However, it seems like it will take a while for this insight to percolate in Japan’s music and technology sectors.

“Closed Architectures for Content Distribution: A Threat for Japan’s Creative Future?” was originally presented in October at the Reproduction in Modern Japan conference at Yale University.

Andreas Bovens is a doctoral candidate in Japanese studies at the Catholic University of Leuven (Belgium) and is currently in Tokyo for a two-year research stay at Meiji University. His research mainly focuses on Japanese copyright policy and technological protection measures. Andreas maintains a research blog on copyright issues in Japan and also writes about Web development for the WebGraphics group blog.

Footnotes

1. Although the Astro Boy (Tetsuwan Atomu) series was created in 1951, the number one story “The birth of Astro Boy” was only written in 1975.

2. Other versions of the same story mention different dates: 2001, 2013 and even 2030.

3. For some examples, see UC Berkeley’s “Transportation Futuristics“.

4. This Wikipedia article gives a short introduction to Disney’s alleged plagiarism.

5. Defining and outlining incentives for creative production is a rather complicated matter. Most authors obviously create also for other reasons than for receiving rights (and related financial compensations) on their works. Proof thereof are creations that were made before the concept of copyright even existed. The copyright law, however, makes abstraction hereof, something that inevitably has an impact on discussions about the scope and duration of an author’s rights.

6. In fact, copyright only grants protection for an author’s expression, not for the underlying ideas. James Boyle (1996, 55) puts it as follows: “Precisely because the originality of his spirit was converted into an originality of form, the author retains the right to the form in which those ideas were expressed.” Thus, the idea/expression dichotomy, although highly theoretical (and maybe even partially flawed), seems to work in two directions. Firstly, it creates a framework in which authors are granted limited property rights over their expressions, while the underlying ideas become a public good; secondly, with copyright being the reward, the author has an incentive to “convert” his ideas to an expressive form.

7. The JCL limits the scope of copyright by allowing the public to copy works under certain circumstances, which are outlined in detail in the section “Limitations on Copyright.” (Articles 30-50, JCL) The use granted to the public in the context of these limitations on rights is comparable with the American notion of Fair Use, although there are differences in scope and application.

8. In his article “Does increased control really contribute to culture?” Akio Nakamata (2004) questions the Japanese music industry’s copyright maximalism and points out its close cooperation with the Japanese government.

9. The section “Protecting of Contents While Taking the ‘Intellectual Creation Cycle’ into Account” of Japan’s Strategic program for the creation, protection and exploitation of intellectual property (Intellectual Property Policy Headquarters 2003) outlines several measures for enforcing the rights of creators within a short timespan (without actually taking care of what it calls the Intellectual Creation Cycle). These include the introduction of new rights, the promotion of technical protection measures, harmonization efforts, etc. The article “An ‘Intellectual Property Strategy’ which fences in information is unsuitable for the internet age” by Nobuo Ikeda (2003) of the Research Institute of Economy, Trade and
Industry (RIETI) points to methodological flaws in the outlined policies.

10. An example is the June 2003 extension of the term of protection for movies from 50 to 70 years.

11. The recent crackdown on the Japanese Winny filesharing software can serve as an example of this development. After the arrestment of two alleged Winny users in November 2003, the developer of Winny was arrested in May 2004 on charges of assisting people with uploading copyrighted materials.

12. In 2000, the ceiling of a fine against copyright infringement by legal persons was raised to not exceeding 100 million yen (about $950,000).

13. Both amendments sparked a lot of debate on Japanese Weblogs and Web sites, with even Amazon.co.jp joining in the protest against the right of import for recordings. Amazon.co.jp’s public statement can be found here.

14. In chapter 6 and 7 (p. 63-99) of his book Code and Other Laws of Cyberspace, Lawrence Lessig (1999) gives an in-depth analysis of how digital architectures are regulated.

15. Lawrence Lessig (id., 99) puts it like this: “The code of cyberspace is becoming just another tool of state regulation.”

16. More info on the EBR-1000 Librié can be found here.

17. Timebook Town can be found here.

18. More info on OpenMG can be found here.

19. BBeB, the proprietary format Librié e-books are available in, even allows publishers to add further restrictions to the content they offer; they can, for instance, define whether a user’s own notes persist or not after the two-month period is over. (Lytle 2004)

20. Article 120bis(2) of the JCL also prohibits the circumvention of DRM as a business upon request of the public. For a more in-depth comparison of the anti-circumvention provision in the JCL and JAUCL, see Kerr et al. 2003, 40-41.

21. Note that circumvention as such is not prohibited by the JCL or JAUCL. (ibid.)

22. This only applies to copyrighted works; works in the public domain can be copied after the DRM is circumvented.

23. Although Lessig is referring to the American Digital Millennium Copyright Act (DMCA), his analysis can also be applied on the Japanese anti-circumvention provision.

24. Aozora Bunko is an online library of Japanese public domain works.

25. More info on DoCoMo’s osaifu keitai can be found here.

26. The A5404S product page can be found here.

27. Chaku-mero stands for “ringtones,” chaku-uta for “ringtunes” (i.e. 30 second samples of famous songs). While ringtones have been available for a few years already, ringtunes are a more recent phenomenon, originally launched by KDDI in December 2002, but now also supported by other Japanese cell phone service providers.

28. “While the OMA DRM 1.0 Enabler Release, issued in November 2002, provides basic protection functions, OMA DRM 2.0 offers improved support for audio and video, streaming content and access to protected content using multiple devices […]” (Reardon 2004)

29. Open Mobile Alliance Web site found here.

30. The NetFront browser, which is installed on several NTT DoCoMo handsets, for example, supports OMA DRM out of the box.

31. *.smf, *.rmf, *.jar, *.mrv, *.mm, *.awb, *.cvg, *.sis, *.c3d, *.opl, *.wbmp, *.bmp, *.ngd are the extensions on the OMA 1.0 DRM file-blocking list. (Lettice 2004)

32. More info on Memory Stick Duo here.

33. More info on miniSD here.

34. More info on Mopass here.

35. An example thereof is a recently announced high-end Motorola smartphone for the NTT DoCoMo network, shipping in early 2005; see this site.

36. The fact that the OMA recently established a formal relationship with the World Wide Web Consortium (W3C), an authoritative Internet standards body, clearly illustrates this tendency towards standardization.

37. The Aibo product site can be found here.

38. AiboPet’s AiboHack site can be found here.

39. The DRM inside the Memory Stick is OpenMG, the protection mechanism that is also used in Sony’s Librié.

40. For a copy of this letter, see this site.

41. It is to be noted that the functional modifications mentioned here go beyond the level of J2ME or BREW applications, which already run on most Japanese handsets.

42. There are a couple of reasons to think this. Firstly, BREW applications, which can be considered as a step towards full device tweakability, already rely heavily on a central certification and distribution service. Secondly, and as explained in section 5, the content industry also has clear interests in controlling the ways in which customers can modify the handsets they buy.

43. Japan created its own format for radio and television stations to go digital: Integrated Services Digital Broadcasting or ISDB. More info here.

44. It is to be noted that governments have a clear incentive to push for outphasing analog broadcasts; doing so allows them to resell the spectrum needed for these broadcasts to other communication carriers.

45. More info on DTV can be found here. The nhk/digital Web site provides specific Japan-related DTV information; see this site.

46. For more info about B-CAS, see this site.

47. The quoted page can be found here.

48. An example thereof would be a device that allows you to edit and mix pieces of digital broadcasts in the context of educational use.

49. The neighboring rights referred to are so called rights of producers of phonograms (Art 96-97ter, JCL), which include the right of reproduction (Art 96), the right of making transmittable (Art 96bis), etc.

50. The Label Mobile site can be found here. According to the Daily Yomiuri, there are around 100 chaku-uta services in Japan, with Label Mobile having about 80 percent of the market. (Daily Yomiuri 2004)

51. However, just as for digital broadcasts, it should be possible to copy chaku-uta via a digital-to-analog-to-digital conversion process.

52. In November 2004, KDDI launched its so-called Chaku-uta Full service, which offers full downloads of music songs. The MPEG-4 aacPlus encoded files are wrapped in DRM and can be played on KDDI’s latest handsets. Prices vary between 210 and 420 yen ($2 to $4) per song.

Selected bibliography

Bechtold, Stefan. 2003. The present and future of Digital Rights Management: Musings on emerging legal problems. In Digital Rights Management — Technological, economic, legal and political aspects. Becker, Buhse, Günnewig & Rump (eds.), 597-654. Berlin: Springer. Downloadable version available.

Boyle, James. 1996. Shamans, software, and spleens: Law and the construction of the information society. Harvard: Harvard University Press.

Burk, Dan L. 2002-07-31. Anti-circumvention misuse. Minnesota public law research paper no. 02-10. Downloadable version available.

Doctorow, Cory. 2002-08-15. Understanding the broadcast flag. G4techTV. (2005-01-21)

Doctorow, Cory. 2004-06-17. Microsoft research DRM talk. Craphound.com (2005-01-21)

Gross, Daniel. 2004-06-02. Buy Cell: How many mobile phones does the world need? MSN Slate Magazine. (2005-01-21)

Horikiri, Chikashi & Mayuko Uno. 2004-05-18. NTT DoCoMo exhibits concept model of ‘TV’ phone. NE Asia. (2004-09-19)

Ikeda, Nobuo. 2003-06-24. An “intellectual property strategy” which fences in information is unsuitable for the Internet age. Research Institute of Economy, Trade and Industry. (2005-01-21)

Intellectual Property Policy Headquarters. 2003-07-08. Strategic program for the creation, protection and exploitation of intellectual property. (2005-01-21)

Johnstone, Bob. 1994-06. Kitchen magician. Wired Magazine, 2.07. (2005-01-21)

Kerr, Ian, Alana Maurushat and Christian S. Tacit. 2003. Technical Protection Measures: Part II. The Legal Protection of TPMs. Canadian Heritage. (2005-01-21)

Labrador, David. 2002-01-21. Teaching robot dogs new tricks Scientific American. (2005-01-21)

Lessig, Lawrence. 1999. Code and other laws of cyberspace. New York: Basic Books.

Lessig, Lawrence. 2004. Free culture: How big media uses technology and the law to lock down culture and control creativity. New York: The Penguin Press. Downloadable version available.

Lettice, John. 2004-07-15. Guilty until proven innocent: DRM the mobile phone way. The Register. (2005-01-21)

Lewis, Leo. 2003-11. Japan’s coffee kings and the Starbucks effect. J@pan Inc Magazine November 2003. (2005-01-21)

Lytle, J Mark. 2004-04-22. Library without books. Guardian Unlimited. (2005-01-21)

Mehra, Salil. 2002. Copyright and comics in Japan: Does law explain why all the cartoons my kid watches are Japanese imports? Rutgers Law Review, 55.1. Downloadable version available.

Middleton, James. 2002-05-07. Sony plays ball with Aibo hackers. Vnunet.com. (2005-01-21)

Miller, Ernest. 2004-05-07. Why use DRM if it doesn’t work? Copyfight. (2005-01-21)

Mochizuki, Atsushi. 2004-05-17. KDDI develops prototype of cell phone capable of receiving terrestrial digital TV broadcasting. NE Asia. (2004-09-19)

Nakamata, Akio. 2004-05-14. Does increased control really contribute to culture? Nikkei Net. (2004-09-19)

Reardon, Marguerite. 2004-02-02. Wireless content gets new security spec. ZDNet. (2005-01-21)

Tezuka, Osamu. 1975 (1999). Astro Boy 1. Tokyo: Akita Shoten.

(The Daily Yomiuri). 2004-08-27. FTC probes music companies. The Daily Yomiuri. (2004-08-28)

(The Japan Times Online). 2004-05-25. Viewers upset over digital TV taping restrictions. The Japan Times Online. (2005-01-21)

Trends in Japan. 2004-03-03. Mobile music: Phone services bring new hope to music industry. Trends in Japan. (2005-01-21)