Article 95Secondary Use of Commercial Phonograms

②The provisions of the preceding paragraph apply to a performer whose performance has been fixed in phonogram whose producer is a national of a country other than a Contracting State of the Convention for the Protection of Performers, etc. which has chosen not to apply the provisions of Article 12 of that Convention, pursuant to the provisions of Article 16, paragraph 1, item (a), (i) of the Convention.

③If the term of the protection under the provisions of Article 12 of the Convention for the Protection of Performers, etc. which a Contracting State of the Convention grants for phonograms set forth in Article 8, item (i) is shorter than the term of protection that performers receive pursuant to the provisions of paragraph (1), the term of protection granted pursuant to the provisions of that paragraph to a performer whose performance has been fixed in a phonogram whose producer is a national of that Contracting State is the term of protection that the Contracting State grants under Article 12 of the Convention for the Protection of Performers, etc. for the phonograms set forth in Article 8, item (i).

④The provisions of paragraph (1) apply to a performer whose performance has been fixed in a phonogram whose producer is the national of a Contracting State of the WPPT (but not a Contracting State of the Convention for the Protection of Performers, etc.) which has set a reservation pursuant to the provisions of Article 15, paragraph (3) of the WPPT, within the limits of that reservation.

⑤If an association is in existence (including a federation of associations) that has as its members a considerable number of persons who perform professionally in Japan, whose consent has been obtained and which has been designated by the Commissioner of the Agency for Cultural Affairs, it is permissible for the right to secondary use fees under paragraph (1) to be exercised exclusively through that association.

⑥The Commissioner of the Agency for Cultural Affairs may not make the designation referred to in the preceding paragraph unless the association satisfies the following conditions:

⑦An association as referred to in paragraph (5) must not refuse to exercise a right on behalf of a right holder if the right holder has so requested.

⑧Once an association as referred to in paragraph (5) has had a request under the preceding paragraph, the association has the authority to act in and out of court on behalf of the right holder, in its own name, in connection with that right.

⑨The Commissioner of the Agency for Cultural Affairs, as provided by Cabinet Order, may ask an association as referred to in paragraph (5) to report on functions related to the secondary use fees referred to in paragraph (1) or to submit account books, documents, and other data, and may make the necessary recommendations for improving the way the association's business is executed.

⑩The amount of secondary use fees that an association as referred to in paragraph (5) may demand on behalf of a right holder pursuant to the provisions of that paragraph is to be fixed each year by mutual agreement between the association and the broadcaster or cablecaster or association of broadcasters, etc.

⑪If the agreement referred to in the preceding paragraph is not reached, the relevant parties, as provided by Cabinet Order, may request the Commissioner of the Agency for Cultural Affairs to issue a compulsory license fixing the amount of secondary use fees.

⑫The provisions of Article 67, paragraph (7) (limited to the part concerned with item (i)) and paragraph (8); Article 68, paragraph (3); Article 70; Article 71 (limited to the part concerned with item (ii)); and Articles 72 through 74 apply mutatis mutandis to the compulsory license and secondary use fees referred to in the preceding paragraph. In this case, the phrase "the applicant" in Article 67, paragraph (7) and the phrase "the copyright owner" in Article 68, paragraph (3) are deemed to be replaced with "the relevant parties"; the phrase "the matters set forth in the items of paragraph (5) and the amount of compensation fixed for the exploitation of the work subject to the compulsory license" in Article 67, paragraph (7), item (i) and the phrase "that fact and the following matters" in paragraph (8) of that Article are deemed to be replaced with "that fact"; in Article 72, paragraph (2), the phrase "the person exploiting the work" is deemed to be replaced with "the broadcaster or cablecaster referred to in Article 95, paragraph (1)" and the phrase "the copyright owner" is deemed to be replaced with "the association referred to in paragraph (5) of that Article"; and in Article 74, the phrase "the copyright owner" is deemed to be replaced with "the association referred to in Article 95, paragraph (5)".

⑬The provisions of the Act on Prohibition of Private Monopolization and Maintenance of Fair Trade do not apply to the mutual agreement referred to in paragraph (10) nor to actions taken under it; provided, however, that this does not apply if unfair trade practices are used or if it would unreasonably harm the interests of the enterprises concerned.

⑭Beyond what is provided for in paragraphs (5) through (13), necessary particulars involving the payment of the secondary use fees referred to in paragraph (1) and concerning the associations under paragraph (5) are provided for by Cabinet Order.