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 Isn’t it about time the extension was rescinded?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. (more…)