“Electronic Public Transmission Act of 2002” as the Minimum
Regulations on the Internet (Tentative Translation)
Koichiro Hayashi（Professor, Keio University）

1. Introduction
In this new era of convergence between telecommunications and broadcasting, we often hear calls
for a legislative system that covers in a combined or comprehensive way both services. But there
has been no attempt to propose radical revisions of the law, although several laws have beenenacted to supplement the existing legislation.
Having conducted a basic study on this issue with several other interested scholars since
as early as the fall of 1996, I reached an idea in the spring of 1999 based on the “horizontal
separation” or “up/down separation” (Hayashi, [1998]) found in industrial organization theories,
and in the fall of 1999, I made a contribution entitled “A Proposal for the Comprehensive Media
Industry Act” (Hayashi, [2000a]) to this bulletin to provide an overview of the new legislative
system.
[Note] Whether the separation is vertical or horizontal depends on the standpoint. Proposing aclassification free of the traditional industrial nomenclature for Internet policies, Werbach[2000)]named the layered model that copies the structure of the computer software “verticalmodel.” In Japan, in light of criticism of the vertical administrative system or the conventional
individual industrial model, which has been compared to rope curtains, the expression “horizontal
separation” will be easier to understand.

Thereafter, the adequacy of the idea has been examined at presentations in academic
conferences and through discussions with companies in the media industry. Through this process,I realized that merely debating the principles would not lead to mutual understanding and that
discussions would not deepen without an actual bill with individual article texts.
In response to the remarks (and expectations) shown in these meetings, I have tried
drafting the “Electronic Public Transmission Act” as attached, and I present you its basic
principle in this literature. It corresponds to the middle layer of the three layers that I have alreadyproposed, namely the “Right of Way Law,” the “General Media Law” and the “General Message
Law” layers
Readers are asked to note that the attached material has been prepared by the author without
knowledge of or experience in legislation, solely for the purpose of more active discussion, and from alegal expert’s standpoint it may thus contain simple misunderstandings, careless use of terms andpoints requiring revision.
I welcome remarks and advice on any technical flaws but it would be far from the intention of
the author, who drafted this text despite his inexperience, if any reader were to consider thiscontribution to represent a weak argument for an ideal system simply because of the faults. Your
understanding and comments with respect to this literature as a material for the main thesis on an ideal
system, setting technical matters aside, would be highly appreciated.

2. Perspectives for Analysis
The analysis starts with an examination of the current situation surrounding general regulations
on the media-related industry and their adequacy. What are called regulations in the media
business can be roughly classified into two types: regulations related to “conduits,” hereinafter
notated “Cd,” which provide a means of conveying information (mainly economic regulations)and regulations related to “content,” hereinafter notated “Ct” (mainly social restrictions). The first1

type of rules are government regulations on economic factors such as the procedures required instarting or terminating certain businesses (market entry/withdrawal regulations), government
interference in price setting (pricing regulations) and prior restrictions on cross-industrial capital
relationships in addition to retrospective ones based on the Antitrust Law (principle ofdecentralization and prohibition of cross-ownership). The second type of rules are designed toensure that no program content contravenes any law, public decency or political neutrality andthat content incorporates the “fairness doctrine” in broadcasting (in Paragraph 2.1, Article 3 of the
Broadcast Law) and the “harmony doctrine”(in Paragraph 2 of the same article).
The division into the two types produces four possibilities: one with regulations in both
Cd and Ct aspects, another with regulations in neither, and the two others with regulations ineither domain, as portrayed in Figure 1. Here, “with regulations” means being bound not only by
the principles in general laws such as antitrust law but also by individual regulations prescribed intheir respective business laws.
When this categorization is applied to existing media businesses, there are three typicalexamples, as follows:
Type P (Publishers model): There is no restriction on the entry into or withdrawal from the media
industry or on the content of information provided. In other words, businesses are free unless they
violate other interests of greater priority under law.
Type C (Common carriers model): Businesses of this type are subject to government regulations
on entry, withdrawal and rates. They are not allowed to have in interest in the content they carry.
Conversely, they are not responsible for the content.
Type B (Broadcasters model): The players in this category are bound by government regulations
on entry and withdrawal. They also have an obligation to make a fair introduction of views of allsociety and to allow different views to be also presented.
Among the three types, no type is called “Type I (Internet model),” rather it would bebasically categorized into Type P as the computer sector is free from Cd and from Ct regulations.
In this sense, the term “electronic publication” may get to the point. But while the Internet issubject to no Cd restrictions, there seem to exist two camps in terms of Ct restrictions in the
United States, one advocating freedom (“First Amendmenters”) and the other calling for
initiatives to prevent deleterious effects on the juvenile (“Paternalists”). The situation is evenmore complicated, because there is another issue concerning the so-called “responsibility ofservice providers,” as to whether or not responsibility for Ct should be shared by Cd operators as
insiders.
Figure 1: Media businesses and regulation types
Ct regulations
Involved
Cd regulations

Involved
Not involved

Type B?? (Type I)

Not involved
Type CType P

3. Concepts of the Comprehensive Media Industry Act
Four plans are conceivable, described below as Plans A to D, for comprehensive legislation to
respond to the integration of media.
Here, Plan A (subsumption under Internet-type communications) proposes an idea that
only the subsumption of conventional telecommunications and broadcasting as part of
telecommunications in a broad sense under the non-regulated Internet is to be legally confirmed
and that no active measures are to be (or cannot be) taken. The point here is that existing Japaneselaws define “broadcasting” as “wireless transmission intended to be directly received by the2public” (Item 1, Article 2 of the Broadcast Law and Item 4, Article 5 of the Radio Law) andtherefore that it is part of the “telecommunications” defined as “sending, conveying or receiving
codes, sounds or images through a wired, wireless or any other electromagnetic method” (Item 1,
Article 2 of the Telecommunications Business Law). (In light of this extremely narrow definitionof the Japanese concept of “broadcasting,” this literature uses the expression of “broadcastingtype services” for broadcasting in a broader sense.)
Plan B (supplementation of a multimedia law) originates from the plan for “Chapter 7 of
the Telecommunications Act of 1934,” an aspiration of former US Vice President Al Gore in 1993.
It proposes adding a new law to be applied to the new field, while keeping existing laws intact. In
other words, it suggested making new provisions for “multimedia” as a new Chapter 7 whilemoving the existing Chapter 7 (miscellaneous provisions) to a new Chapter 8 in the
Telecommunications Act enacted in 1934. The suggestion envisioned that if the new Chapter 7 isprovided as the least regulated “Telecom Haven,” it would attract ambitious companies such as
ventures while the other chapters would die out.
This idea, not actively adopted in the 1996 Telecommunications Act, consequently took
shape as “Unregulation of the Internet,” the concept of which is explained in 4.2. However, itsachievement in the market seems to have been far from Mr. Gore’s expectations. Despite theemergence of many ventures, the reality was that the traditional “five lanes” of the information
superhighway (fixed phone networks, mobile phone networks, terrestrial broadcasts, CATV andsatellites) had tremendous vested interests that overwhelmed the power of deregulation.
Plan C (extraction of general provisions) is for the purpose of making a general law
consisting of general or common provisions extracted from individual media laws. When media
are integrated, it is the laxness of principles that causes trouble with the application to theintegrated field. If the principles are definite, responding to individual cases will be easier.
Nevertheless, as long as the principles are only built on case studies, rapid changes intechnologies or in the market will generate unstable doctrines. Another point is that this approachrequires consensus building in the process of extracting general provisions, which means that a
failure to coordinate interests will lead to a failure in making a new law.
The purpose of Plan D (horizontal separation) is to set up regulations for each domain
defined in a trichotomy: electronic messaging, electronic media and right of way. Here, the term
“electronic” is inserted to the article by Hayashi [2000a] to clarify the position of the plan and toprevent the comprehensive media law from infringing on freedom of speech, given that Type P as
described above is ideal for ensuring it.
In Figure 2, the solid lines denote the expected establishment of new act and the dottedlines indicate that no positive law is needed, with complete deregulation expected depending on
future considerations. The plan is designed to enable the reconstruction of a system suitable for an
anticipated situation where multimedia communications will be dominant, according to theconcept of horizontal separation, in today’s industrial organization theories.
Table 1 shows a comparison of the four plans, looking at their pros and cons. Plan A isthe easiest but without any legal policy it is unlikely to respond to contingencies. As the mostorthodox approach, Plan B is like ly to win many supporters from among legal experts, but its
disadvantages are as described above. Plan C is unrealistic. Consequently, the present conclusionin the context of this article is that promoting Plan D is the only solution, albeit a difficult one.

3

Figure 2: Four proposed formulations of the integrated law
Plan A: Subsumption under Internet-type communications

Internet
Internet
Conventional telecommunications
Conventional broadcasting

Subsumption of conventional
telecommunications and broadcasting (See Note)as part of telecommunications in a broad sense,
while the non-regulated Internet is only to belegally confirmed and no active measures are tobe (or cannot be) taken.
(Note) “wireless transmission intended to be
directly received by the public” (Item 1, Article
2 of the Broadcast Law, Item 4, Article 5 of theRadio Law)

Plan B: Supplementation of a Multimedia Law
Broadcast
Law

Multimedia Law

Telecommunications
Law

Idea adopted in the plan for “Communications Act
Chapter 7,” an aspiration of former Vice President
Al Gore, and in Germany’s multimedia law,
proposing adding a new law to be applied to the
new field with existing laws intact

Plan C: Extraction of General Provisions

Telecommunications
Law
Broadcast Law

Making a platform law composed of general orcommon provisions extracted from individual
media laws

General (Common) Provisions

Plan D: Horizontal Separation(Trichotomy: message, media, right of way)

Electronic Message Common Law

Reconstructing a system suitable for an
anticipated situation where multimedia
communications will be dominant according to
the concept of horizontal separation, depending
upon today’s industrial organization theories

Electronic Media Common Law
Right of Way Law

4

Table 1: Comparison of the four plans
Plan

Advantages

Disadvantages

Plan A:
Subsumption underInternet-typecommunications
Plan B:
Supplementation of amultimedia law

No special actions required

Plan C:
Extraction of generalprovisions

Appropriate as a process ofgaining consensus in relatedindustries

Plan D:
Horizontal separation

Appropriate approach for themultimedia era
A new system surpassing
other developed countries interms of the activation of themedia industry

An orthodox way of enacting
a new act
Legislation relatively easy

Without a policy orientation, it
may be overwhelmed by trends
and have unexpected negative
repercussions
Based the example in the
United States, its effect islimited unless vested interests
are weakened.
Feasibility questioned giventhat the Radio Law and theBroadcasting Law were notcoordinated for 50 years
No bill is possible without acoordination of interests
An unorthodox approach
Wisdom needs to beaccumulated

Comprehensive
Evaluation
×

△

×

○

4. Three Motives
4.1 Introduction of the Concept of “Public Transmission” to the Copyright Law
After the completion of “A Proposal for the Comprehensive Media Industry Act” (Hayashi[2002a]) I was not able to see the next step. It was a revision of the copyright law that gave me
the first suggestion. It sounds remote to the readers but it is only because we take the legal systemin the materialist world for granted. Those who think about “information rights” (Kumon[1988])
or “information basic rights” (Firestone and Schement[1995]) consider copyright, especially themoral right, as well as the right to use the media to be part of basic human rights.
In any case, in the world of copyrights, there has been concern about the spread ofunauthorized copies through the Internet. Legislators cannot help but take the situation so
seriously that they in fact made an attempt to adequately position it in the legal system as“interactive transmission.”
Consequently, the new concept of “public transmission” was introduced as acomprehensive concept, ranging from conventional “broadcasting” or “CATV” to “transmission
through a person” which has existed but not explicitly (7a in Paragraph 1, Article 2 of the
Copyright Law). Thus, “interactive transmission” is renamed “automatic public transmission” (9cin the same paragraph), and “making-transmittable right” (or the down-to-earth “uploading toservers” in 9.4 in the same paragraph) as a step before public transmission right is given to the
copyright owner to maintain the basic principle of copyright law, namely the prohibition of
duplications (as in Figure 2 or in Article 23 of the same Law).

5

Figure 3: Concept of “Public Transmission”
Public Transmission

Automatic Public Transmission
Interactive Transmission

Transmission automatically made from Internet websites upon request from thepublicBroadcasting

CATV

Simultaneous Transmission

Simultaneous Transmission

Wireless transmission intended for
simultaneous reception of thesame content by the public suchas television and radio services.

Wired transmission intended for
simultaneous reception of thesame content by the public such as
CATV

Other public transmissions (e.g. Manual fax transmission upon request on the phone)

Source: Agency for Cultural Affairs and Ministry of International Trade and Industry [1999]
partly revised
Moreover, the concept of “public” has been revised not only to cover “general public, or anunspecified large number of persons excluding those concerned with specific legal relationships”
as in general use but also to “include a specific and a large number of persons” (Paragraph 5,
Article 2 of the Copyright Law) as well. This change has attracted my attention. If it is extended,“telecommunications” and “broadcasting,” which were thought to be at opposite poles, could becovered with a single concept.
4.2 “Unregulation” Policy on the Economic Aspects of the Internet in the United States
In tracing back the history of the development of the Internet from the perspective of regulation
policies, I looked back on the history since the start of Computer Inquiry in the late 1960s andeventually assessed the “Unregulation” policy that was unique to the United States. The main
points are as follows: (Refer to Hayashi ([2000a], [2000b] and [2002]) for details.)(1) The US Government, especially the Federal Communications Commission (FCC), abolishedor eased facility-based regulations and focused on service regulation, since the emergence ofcomputer communications.
(2) The policy of “Unregulation” that the FCC had taken had the positive effect of freeing entry
into the market and price setting along with its “Forbearance” policy for telephone services.
(3) It was particularly significant to exempt Internet Service Providers (ISPs) from obligations toensure interconnection and to contribute to the universal service fund. It allowed ISPs tocompete in a free market without FCC regulations, as in the computer business.
On the contrary, it has been considered difficult to design a system focusing on the Internet using
conventional approaches in Japan, where regulations mainly depend upon facilities rather thanservices. However, based on the differences between the United States and Japan in the active
application of information technologies, it is thought that those measures listed below are to be6

promptly taken, given that Internet traffic will surpass that of the phone networks.
(1) The swift development of related legislation based on a declaration to be made by the IT
Strategy Headquarters setting itself to “abolish or withhold regulations on the Internet” as thenumber one target of deregulation(2) The immediate abolishing of regulations concerning Type-2 operators(3) Confirmation that the regulations in NTT Law do not include the Internet(4) The abolishing of the related parts of the regulations on dominant operators that contradicts
the principles set out above. Internet-related services such as i-mode of NTT DoCoMo and Lmode of NTT East/West are to be subject to “Unregulation.”
The above remarks suggest that the Internet should, in principle, be free from regulations,switching the world of telecommunications from a telephone-oriented mindset to an Internetcentered one.
4.3 Background to Considerations for “Chapter 7” of the US Communications Act of 1934
Plan B described in the previous paragraph is nothing more or less than the idea for a “Chapter 7of the Communication Act,” which was promoted at the initiative of (the then) US Vice President
Al Gore. Although it ultimately ended in deadlock, it was so innovative to see if anything useful
could be extracted. As a result of reviewing the version dated November 15, 1995, (National
Computer Board[1995]) as material, the following points became clear:(1) It is quite understandable that Chapter 7 was meant to integrate the regulations only inbroadband interactive services (i.e. “common carrier regulations” in Title 2 and “CATV
regulations” in Title 6) and to ease the regulations.
(2) However, the United States still had a problem with dual jurisdiction for regulations between
the federal and state governments. As a result, regulations could not be lifted.
(3) The regulations were still directed at operators (specified in proposal Title 7). (The services
specified in Title 7 were also under control but they were basically the broadband interactive
services offered by the operators specified in Title 7.)(4) In view of this, it is inevitably deemed inconsistent with the policy of “Unregulation”
sustained since “Computer Inquiry.”(5) A majority of the prescriptions in Title 7 were common carrier regulations (“Type C”
according to my own classification) formulated based on Title 2.
To sum, it tells us that (1) it is difficult to make an integrated law only based on Plan B, that (2) itis believed to be possible for Japan to have more intensive “Unregulation,” as Japan does nothave the problem with dual jurisdiction that the United States has, and that (3) the only possible
solution is to create a legal system focused on common carrier regulations (Type C).

5. The Need for “Telecommunications-Broadcasting Integrated Act”
5.1 Limitations of Patchwork
As for the trends towards integration, the Ministry of Public Management, Home Affairs, Posts
and Telecommunications (former MPT) assumes that the differentiation between
telecommunications and broadcasting is possible with the concepts of “telecommunications to alarge audience” and “broadcasting with specificity” (narrowcasting) and that the differentiation
itself is inevitable based on the existing law system. However, this dualism is likely to reach adead end, just as the introduction of “hybrid services” following the first Computer Inquiry ended
up breaking down (Hayashi[1998]). In cases brought before the courts in Japan, the division isblurred (Makino[2000]).
Some specific examples are listed below:
7(1) A “packaged service” of telecommunications and broadcasting cannot be smoothly offered
as is under the control of compartmentalized legislation in each sector.
(2) With terminals for TV and for the Internet integrated and broadband communications
available on the network, it is impossible to differentiate TV services from Internet services
at the point of transmission of information and integration is practically unavoidable. (Forinstance, a mobile terminal is used to receive terrestrial digital TV broadcasts.)(3) Concerning Ct regulations unique to broadcasting, satellite broadcasting, CATV andbroadband Internet services will need to be exempted, even if terrestrial broadcasting is kept
under regulations.
(4) Similarly, concerning the principles of decentralization of mass media and foreign capital
restrictions peculiar to broadcasting, those in the new fields excluding terrestrial
broadcasting need to be lifted or relaxed in order to promote global business development.
Needless to say, not all patchwork is useless. The newly-born Law Concerning Broadcast
via Telecommunication Services provides for rules on broadcasting services using facilities
originally meant for telecommunications. In this sense it is designed to respond to the merger oftelecommunications and broadcasting, but it also has some aspects that could be beneficial for thetime being and obstructive in the long run like the concept of “entrusted broadcasting.” describedin the next section.
What is in question here is the significance of patchwork on the premise of continued
division between the Broadcast Law and the Telecommunications Business Law, when such adivision has become virtually meaningless.
5.2 System Distorted by the Segmentation
The world of satellite services, in which convergence appeared earlier than in other sectors, still
maintains the dichotomy despite the fact that there is no difference between transmission ofprograms using communications satellites and that using broadcast satellites. Transmission with
communication satellites has a new differentiation between “entrusting broadcasters” (programsupplier) and “entrustee” (transponder vender), the latter being required to get approval on entry.
It is mainly intended for imposing “fairness doctrine” in Article 3-2 of the Broadcast Law onprogram-supplying broadcasters as well.
There is a case in which whether or not transmission of programs using communications
satellites falls into the “broadcast services” prescribed in the Broadcast Law was contested, whichis the “Star Digio” case. Star Digio “broadcast” a program consisting of tens of pieces of musicfrom musical records of the plaintiff without any comments or speech six to twelve times a day
for a week. The plaintiff insisted that, given that many listeners digitally recorded the “broadcast
program” on mini-disks, the conduct of the defendant, which was wireless transmission to
encourage record copying, should not de defined as “broadcasting.”
On the other hand, the defendant asserted that it was “broadcasting” prescribed in the
Broadcast Law and in the Copyright Law, that a temporary recording of the plaintiff’s record waslawful private use without infringement of copyright and that the record producers should only
hold a right to claim royalties for secondary transmissions and had no right of authorization(including a right of rejection). In the first trial, the court rejected the plaintiff’s claim and ruledthat the act of the defendant was “broadcasting.” (The case is currently on trial on appeal.)
This case concerns the impact of “neighboring rights” given to broadcasters. Inherent to
the neighboring rights are two controversies critical to the distribution of digital goods. One is on
the root of the rights. The grounds for neighboring rights of mere “distributors” are questionablebecause they do not require creativity, unlike copyright granted to creators. (Althoughneighboring rights includes those granted to performers, this literature focuses on those ofbroadcasters.) The other is on the policy of whether or not the neighboring rights should cover theact of uploading to servers for Internet distribution (or the “right to making transmittable” in the8concept of Copyright Law).
In my opinion, neighboring rights granted to broadcasters were simply the result of an
overestimation of the function of broadcasting, which was a new medium of the time, and shouldbe abolished in the Internet era. Further expansion of the right to “making transmittable,” would
constitute a legal discouragement of integration and should be avoided.
5.3 Responsibility of Information Intermediaries for Content
With respect to the debates on the responsibility of information intermediaries(ISPs and others)
for content, the United States, as an advanced Internet country, has several precedents. The
discussions mainly scrutinizes three cores: (1) obscene materials are posted on a website(discussions on this case are further divided into those concerning a case in which theintermediaries are aware of the situation and those concerning a case in which they are not), (2)pirated materials, and (3) libelous materials.
Some specific rules will be required for content responsibility with reference to these
discussions (Matsui[1999]). But this article does not go into further details as Hayashi [2000a]offers an in-depth analysis on this issue.
5.4 Pulling Away from the Convoy System with a Lockstep Mentality
In relation to the points discussed above, the ambiguity and complexity of the regulation systemproduces a strong chilling effect, which enhances the uncertainty of business activities anddeactivates the economy. For instance, some restrictions are currently imposed on L-mode
Internet services developed by NTT East/West and on the distribution of NHK programs throughan affiliate company to simply maintain equilibrium with other competitors.
It is only for the purpose of industrial coordination based on a false egalitarianism toemphasize peace in the industry by attenuating the forces of the strong. It contains no guaranteethat it will serve users’ interests (Hayashi[2001]) and it has ultimately encouraged the survival of
the NTT Law and the Broadcast Law, also known as the NHK Law.
When business operations in the conformist “convoy” system made every player happy toa certain extent and were of some benefit to users, this harm was not fully recognized. But in the
recent dog years featuring the development of new businesses based on self-responsibility, thedrawbacks are becoming remarkable.

6. Gist and Basic Perspectives of the Proposal
6.1 Gist and Premise of the Draft Bill
Based on the foregoing considerations, I tried making a draft “A Bill Guaranteeing the Freedom of
the Electronic Public Transmission Business and Prescribing the Minimum Regulations (abbreviatedas the Electronic Public Transmission Bill)” as in the attached material to provide a basis for further
discussions. As stated at the beginning, it has two purposes. First, the presentation of specific texts
will deepen understanding and highlight the issues in an examination of the “ideal legal system”
described in this contribution. Second, this hypothetical legislation process makes my argument betterorganized and performs a checking function to help the author polish or correct this thesis. The author
hopes that the draft bill will serve as a reference model throughout this feedback process .

Let us confirm the basic views behind the draft before reading it:(1) The draft is for an “General Internet Law” as suggested in Plan D in Figure 2, in which Cd
and Ct are separate from each other even in “broadcasting-type services.”(2) No better option could be found than Type P, according to which even electronic media can

9be operated without restrictions either in Cd or in Ct, if it could stand.
(3) But unfortunately, the policy for a regulation-free environment for paper media cannot bedirectly applied to electronic media as is, something that is clear from the problem of the
responsibility of ISPs discussed earlier in the literature.
(4) Thus, the draft bill restrictively provides for minimum restrictions on electronic media andalso sets out exclusion clauses to ensure freedom of speech and safety in transactions.
6.2 Structure of the Draft Bill
Leaving the details of the draft to the attached material, this paragraph takes a brief look at theoverall structure, which can be seen from chapter formation.
The general provisions in Chapter 1 consist of the purpose (Article 1) and the definitionsof terms (Article 2). Short though it is, it covers the purpose and main concepts of the bill.
Chapter 2 (rules on electronic public transmission services) sets out general rules that must be
observed by everyone such as freedom of speech and prohibition of censorship (Article 3),protection of confidentiality (Article 4), freedom of reception (Article 5), prohibition ofunauthorized access and related acts (Articles 6 to 8). “Freedom of reception” may soundunfamiliar but it is the only provision on reception, even though the whole bill sets out rules ontransmission. Reference should be made to the fact that some progressive researchers take theview that the regulations for the protection of human rights formulated after World War Two, suchas the Bonn Basic Law and Universal Declaration on Human Rights prescribes the “freedom ofreception (or choice)” (Kimura[1999]).
Chapter 3 for the “obligations of electronic public transmission operators and electronic
public transmission business operators” has prescriptions with a three-layer structure. The firstlayer is on what must be observed by all those who perform electronic public transmission as an
occupation or as a job, namely securing essential transmission (Article 9) and requisite services(Article 10). On the second layer is the obligation of operators providing their services as abusiness to protect personal information (Article 11). And on the third layer is the obligation ofbusiness operators larger than a certain scale to guarantee open access (Article 12) and to makeinterconnection (Article 13).
Chapter 4 for The Electronic Public Transmissio n Commission contains three articles(Articles 14 to 16) that prescribe the authority and the organization of an independentadministrative commission to replace the related bureaus and departments of the former Ministryof Posts and Telecommunications in the present Ministry of Public Management, Home Affairs,
Posts and Telecommunications. However, as is discussed below, this chapter will have to bereconstructed to cover the control of wireless telecommunications, since the draft is incompletewith a focus on wired transmission.
Chapter 5 for “indemnification and penalties” consists of two articles (Articles 17 and 18)that provide for the immunity of service providers from liability and three articles (Articles 19 to21) that prescribe penalties, mainly for a violation of regulations in Chapter 2. Given that there isno demarcation of responsibility established in this field, the draft could cause intense
controversy and this is also one intention of the author.
At the end, “miscellaneous provisions” in Chapter 6 prescribes the exemption of
application (Article 22), repeal of related regulations (Article 23) and substitution of terms formutatis mutandis application of related regulations (Article 24).
6.3 From a “Telecommunications-Broadcast Integration Act” to an “Act on Freedom andMinimum Regulations on the Internet”
I had an unexpected experience in the course of drafting the bill. I intended to put forth a draft fora future Act on the Integration of Telecommunications and Broadcasting, but when it was

10complete the draft turned out to be sort of a “Act on Freedom and Minimum Regulations on theInternet.” Thinking about it rationally, it is only natural, because the Internet is being consideredunique in that it is not merely a third network outside the frameworks of “telecommunications”
and of “broadcasting services” but it is something that subsumes both of them as well as
integrates with each of them individually.
At the same time, I realized that there is some time difference between the processes.
Computers and telecommunications are so integrated that they are almost synonymous to eachother, as more than thirty years have passed since the convergence of the two fields got underway.
On the other hand, it was only a few years ago that broadcasting-type services, or broadband
transmission, became possible on the Internet. The development of this industry is a challenge forthe future.
This means that to establish a legal structure that can uniformly control the integration of
telecommunications, a text on “broadcasting-type services and the Internet” must largely depend
on future discussions, although it is possible to make an immediate presentation of a draft as totelecommunications and the Internet. My paper has explored specific texts in the second domain
but ended up leaving the issues in the first field to future discussion. Specifically, such regulations
as the Wired Communication Law, the Telecommunications Business Law and the NTT law has
been uniformly restructured while the Radio Law and the Broadcast Law has been set to be left
untouched until they are replaced by the unified law in the second phase.
However, it was a significance experience to focus my endeavor on the Internet to
introduce its innovative features into the law system. Although it is still far from refined, my plan
has two pioneering aspects that can be described as “paradigm shifting.” One is that it has beenreorganized centered on broadcasting-type services rather than on telecommunications services.
The other is that the bill is designed to apply the same rules to all parties that provide the services,
without any distinction between business operators and non-business operators.
6.4 Personal Media as Part of Mass MediaWe will now look at the first point. Telecommunications services and broadcast-type services
originally have antithetical intentions in two aspects: first, two-way communications versus oneway communications and, second, personal media versus mass media. In my tentative proposal,
they have been redefined to become somewhat closer to broadcast-type services, since thenucleus of “electronic public transmission” is “transmission” to the “public,” which is totallycontrary to the concept of “specific telecommunications” set out in the Law on Limited Liability
and Transmitter Information Disclosure for Specific Telecommunications Service Providers”(commonly called the “Provider Liability Law”).
Nevertheless, no “reception” is logically feasible without “transmission.” A single person
can be “public” depending on the definition of the term. It was the Copyright Law itself that was
the first to stipulate, “As used in this Law, ‘the public’ includes a large number of specificpersons” (in Paragraph 5, Article 2). If it is extended, the above provision will be possible. In myown bill draft, with “acceptance of access” listed in the definition of “transmission” (Article 2), it
can be considered to include a mode of reception. The point is that it is vital to takecommunication media that is open to everyone, even when there is eventually only a single
recipient and that allows transmission to anyone as a means of “public transmission.”Interestingly, this definition generates a legal reversal. In Japan, broadcasting has
traditionally been part of telecommunications, but in the future personal media including wired
communications are a part of mass media, or in other words “specific transmissions” is part ofelectronic public transmission.
Of course, the adequacy of this definition must be examined from different standpoints.
For instance, France has a strong orientation to content-based policies on telecommunications andbroadcast-type services from a cultural viewpoint, regarding them as “audio-visual” in addition to11

industrial regulations. However, having predicated my discussion on a distinction between Cd
and Ct since my previous academic contributions, I will retain this position for the time being.
Sensible readers might have already found out that the Radio Law, the Broadcast Law
and the Cable Television Law are not listed in the above-mentioned laws to be repealed. They
have to be kept intact since no consensus has been sufficiently established on how to reform theradio wave allocation. The repeal of these laws will be a focus of future discussion.
Not all factors are negative. For example, if broadcasting-type services are divided into
the Cd segment and the Ct segment, the Cd part of the services can be operated under this loose
regulation. The remaining part is to be placed under circumstances entirely free from restrictions
as “content business.” This is exactly what the United Kingdom did to restructure the regulations
for broadcasting businesses in early 90’s.
If broadcast-type services which used to be only part of the telecommunications services,
become central, a number of overlooked problems come to the fore, such as a question over the
regulations of content (such as fairness doctrine) and the neighboring rights of broadcasters after
the introduction of a new Electronic Public Transmission Law and the repeal of the Broadcast
Law.
In my view, based on a rigid distinction between Cd and Ct, the broadcasting businessmodel will be incorporated into electronic public transmission, and neighboring rights will die out
in course of time. Yet the broadcasting business model does actually exist and is unlikely todisappear in several years, to say the least. Therefore, very careful consideration will be requiredin an elaboration of transitional measures.
6.5 Tripartite Classification: “Business Operators,” “Operators” and “Users”

The focus of this paragraph is the second point, which is on the non-employment of the conceptof “business operators” as a central means of rules. In traditional practice, “business operators”
were designated and certain regulations were imposed on the designated “business operators” toensure the reliability, safety and affordability of services, whether they are in telecommunications
or in broadcasting. The Telecommunications Business Law is literally designed to regulate thebusiness and business operators. The Broadcast Law is in effect a business law, though it is notcalled a “Broadcast Business Law.”
But in the Internet era, the validity of “operator-based regulations” like these laws isquestionable. They will remain effective, provided that the services or facilities on which theservices are based have some scarcity and certain factors that can only be achieved by thebusiness operators. In contrast, the world of the Internet features astonishing price reduction andprogress in interface technologies that allow anyone to construct and operate networks (which I
metaphorically dub “buying optical fibers in Akihabara”). The rise of LANs proves this fact, andwireless LANs are expected to rapidly grow in future.
In this situation, we should think that any distinction between business operators andusers is almost meaningless and that the significance of a network now depends on its scale. In
other words, from a legal perspective, the Wired Telecommunications Law and the Radio Law are
more important today than the Telecommunications Business Law (though these laws are overfifty years old and will have to be thoroughly revised, since partial revision cannot adapt them tothe current situation). From a business perspective, it can be said that the construction andoperation of networks can now be made on a do-it-yourself basis.
At any rate, networks are expected to evolve into “networks of networks” (from which
the term of “Internet” derives), with a blending of various types: some are operated by business
operators while others are operated by users, some are fee-based while others are free of charge,
some are exclusive while others are open to the public, and some are owned while others areleased. I feel proud to present a bill draft that slightly foresees this transition.
Notwithstanding this, it also raises new questions. Although the attached material has a12classification into three types of operators: electronic public transmission operators that provide
electronic public transmission services as an occupation or as a job, electronic public transmission
business operators, which are electronic public transmission operators providing their services asa business, and users, the difference between them is less and less clear. In fact, the distinction
between “as a business,” “as an occupation” and “as a job” is not necessarily definite, and themost basic concepts including “computer” and “access” are not defined in the legal world (see the“Unauthorized Computer Access Law.”)
But in legal terms, clear definitions are required if a distinction in categorization leads todifferences in rights and obligations. Pondering how to solve this dilemma, I have yet to reach aconclusion. As an extension of the idea, it will be worth consideration the establishment of a newlaw based on the Wired Telecommunications Law (controlling wired communications facilities
installed by users).

7. Self-Evaluation and Problems Left Unsolved
If I may assess the bill draft on my own, I think that it substantially relaxes or abolishes
regulations because, given that it has no added restrictions (apart from the argument that freedomof reception restricts rights of transmission), it relaxes the regulations on Cd regarding the Type B
media, subject to tight restrictions both on Cd and on Ct, to the level of those for the Type C
media or its variant Type C’ only if separation between Cd and Ct (or the “separation between
hardware and software” as it is called in the broadcasting industry) is implemented.
The draft has only 24 articles, though it may need some more to prescribe theindependent administrative commission. In comparison, the total number of articles in the laws
to be repealed by the bill exceeds 150. The draft can be therefore considered to sufficiently
respond to the trends towards simplification and deregulation. Rather, what must be assessed iswhether the prescriptions will guarantee freedom or impose more than the minimum restrictions.
As stated above, I have designed the bill draft to protect freedom as a principle of the
maximum development of the Internet and to prescribe the minimum required rules in order toprevent provisions for stricter regulations. Yet the constitution of law always involves a risk of
inducing further regulations by prescribing regulations. The examples of the Communications
Decency Act (CDA) and the Child On-line Protection Act (COPA) in the United States, both ofwhich were confirmed as being partly unconstitutional, underpin my anxiety. My draft is not
immune from this risk and therefore requires broader checking.
I feel I have learned a lot from an in-depth examination, though at that same time, as an
academic, I cannot help but feel anxious that my exploration should have gone no further than thephilosophy of the law, keeping away from the legislation process. A typical regret of this kind canalso found in the position of the distinguished American scholar Professor Noam[1995)“Principles of the Communications Act of 2034.
In addition to the basic issues discussed above, there are many other questions left
unanswered. They include the following:(1) Establishment of an independent administrative commission that deals with settlement of theconflicts described above, as well as “Right of Way,” such as radio wave administration androad occupation as its main coverage. My Plan D envisions establishment of an “Electronic
Public Transmission Commission” as such a commission.
(2) A problem similar to that mentioned in 6.5 over the distinction between Right of Way and Cd.
(3) Ex-post facto treatment or transitional measures to respond to a situation in which public
utility privileges are no longer guaranteed due to the disappearance of prescriptions on “Useof Land” in Chapter 3 (Article 73 and below) of the Business Law when it is repealed before
enforcement of a Right of Way Law.
(4) Whether the bypassing of the provision in Article 108 of the Radio Law regarding the13

transmission of obscenities (based on the idea for application of the penal law as a generallaw) and the abolishing of provisions for attempted offenses in Articles 19 to 21 (while
attempted offenses are prescribed only on “hindrance to electronic public transmission” andon a “breach of secrecy in specific transmission” in the existing law) with a view tointegration of penal provisions is found to be appropriate from the viewpoint of theprotection of human rights or inappropriate because of the increased public nature ofelectronic transmission services. This needs careful study.
(5) The sequence with which the laws are repealed and transitional measures when it isinevitable that some of them are repealed simultaneously while others are repealed with atime lag.
(6) Coordination or integration with recently enacted laws. The draft has the “UnauthorizedComputer Access Law” incorporated but there are some other laws to be studied, such as the“Entertainment and Amusement Business Moderation Law,” the “Law on Broadcasting using
Telecommunications Services,” and the “Law on Limited Liabilities and Transmitter
Information Disclosure for Specific Telecommunications Service Providers.”
Consequently, my draft is not entirely based on Plan D. Although it is centered on Plan D, it also
has one feature from Plan A (adoption of a comprehensive concept of “public transmission”
derived from the Internet) as well as an element of Plan B (enactment of the “electronic public
transmission law” with loose regulations to cover business operators escaping from otherregulations as in the Broadcast Law).
In relation to the above trichotomy of Types P, C and B, it can be said that it is mainly
based on Type C, with some aspects of the mass media adopted. My study will continue.
(Acknowledgements)
Special thanks go to Professor Masao Horibe for his incentive to this contribution (especially tothe bill draft) and to Mr. Jiro Makino,Attorney at Law; Professor Shigeki Matsui and Mr. Tomoki
Tsubota, who hosted the panel, for their valuable comments at the Glocom Forum. I would also
like to give my thanks to the members of Study Group for the Comprehensive Media Industry Act
and of the Study Group on Telecommunications and Broadcasting for their remarks in the processof my elaboration. Of course, the ultimate responsibility for the content rests with me.
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