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Overview

Japanese Copyright Law Japanese Patent Law
  1.Works  1.Patentable Inventions and Eligible Patent Rights Holders
  2. Authors  2.Applications
  3. Contents of Copyright  3. Effects and Infringement of Patent Rights
 4. Moral Rights  
 5. Exploitation of Works  
 6. Infringement of Rights  

Japanese Copyright Law

1.Works

Specified Field Study Intellectual Property Group – Outline
Hisayoshi Yokoyama
Associate Professor of Law
Gakushuin University

1. Copyrightability
(1) Meaning of “Works” – the Subject Matter of Copyright

The subject matter of copyright protection is “works”. The Copyright Act defines “works” in Article 2(1)(i) as a production in which “thoughts or sentiments are expressed in a creative way and which falls within the literary, scientific, artistic or musical domain.”

Further, the Copyright Act furnishes a provision giving examples of “works” in each of the items of Article 10(1). To be specific, these are novels, dramas, articles, lectures and other literary works in Item (i), musical works in Item (ii), choreographic works and pantomimes in Item (iii), paintings, engravings, sculptures and other artistic works in Item (iv), architectural works in Item (v), maps as well as figurative works of a scientific nature such as plans, charts and models in Item (vi), cinematographic works in Item (vii), photographic works in Item (viii) and program works in Item (ix). Provided, however, that these are no more than examples of the works protected under the current Copyright Act ; the provision is not a comprehensive list of all possible works. It follows that a production will be protected as a “work” if it falls within the Article 2(1)(i) definition of the same, even if it is not included within the categories under Article 10(1).

(2) Requirements for Copyright Protection

In order for a work to be protected as such it must fulfill the following conditions, (1) expressing “thoughts or sentiments”, (2) being an “expression”, (3) being “original” and (4) falling within “the literary, scientific, artistic or musical domain”.

(1) Expression of “thoughts or sentiments”

For a work to be protected as a work, the “thoughts or sentiments” of its creator must appear in the production. This means that productions which are not the fruits of a person's mental activity is excluded from copyright protection.

The “thoughts or sentiments” mentioned here is a broad concept indicating the entirety of human mental activity ( Election Tip Sheet Case, Second Instance, Tokyo High Court, 19 February 1987, Mutaisaishu Vol. 19 No. 1: 30). Further, the “thoughts or sentiments” need not be at a high artistic or academic level, the standard of some kind of thought or feeling being apparent will suffice. Productions where a person is not involved in the creative process such as natural objects, pictures drawn by animals and productions automatically generated by computers are examples of cases where “thoughts or sentiments” would not be found to exist.

Further, as facts or data, such as Japan 's overall population, GDP or GNP, exist in an objective sense, are not created by a person and cannot be said to show “thoughts or sentiments”, they are not protected as works, even if massive amounts of effort or money were expended in their acquisition. The Copyright Act itself also provides confirmation to the same effect in Article 10(2), “Reports of current events and miscellaneous news having the character solely of communication of information shall not fall within works”. Of course, even if the actual facts are not protected as works, in the case of, for example, newspaper articles, if, in order to express those facts, the author's originality is displayed through his or her choice of words or stylistic expression, then the article will be protected as a work on the basis that the article does not equate to facts per se but an expression of the author's thoughts and sentiments in response to the facts ( Confessions of the Democratic Youth League of Japan Case, Tokyo District Court, 11 October 1972, Hanrei Taimuzu No. 298: 377; Bulletin Case, Fukuoka District Court, Omuta Branch, 28 September 1984, Mutaishu Vol. 16 No. 3: 705.

There are also case precedents holding that “written forms” including bills of lading and written contracts do not express “thoughts or sentiments” and are not copyrightable ( Bill of Lading Case, Tokyo District Court, 31 August 1965, Kaminshu Vol. 16 No. 8:1377; Written Contract Case, Tokyo District Court, 14 May 1987, Hanrei Jiho No. 1273: 76.

(2) An “expression”

A work is a production that “expresses” the creator's thoughts or sentiments. “Expression” means “an expression that actually expresses the author's thoughts and feelings in a concrete and externally perceptible form” ( Kerokerokeroppi Case, Intermediate Appeal, Tokyo High Court, 23 January 2001, Hanrei Jiho No. 1751: 122). There following two meanings form the prerequisites for constituting an “expression”.

Firstly, in order to receive copyright protection it is necessary for the author's thoughts or feelings to be expressed in a manner that is externally perceptible. As long as the author's thoughts or feelings are retained inwardly, the production will not be protected as a work. Provided, however, that there is no particular need for the thoughts or feelings to be fixed in some material form. As in the case of an improvisation, if the author's thoughts and feelings are externally perceptible then they can be said to have been “expressed”, even if this is not embodied on paper, or recorded on magnetic tape.

Secondly, entitlement to copyright protection is limited to the fruits of the concrete expression of the author's own thoughts or feelings; protection does not extend to abstract themes or means or methods of expression that brought about those fruits (generally known as ideas). To illustrate, where an artist has devised a new method of drawing and uses that method to draw a picture, the finished picture receives copyright protection as an expression of the artist's thoughts or feelings, but the actual drawing method, which brought about that picture, is not protected as a work. It follows that whilst if a third party copies the picture this constitutes a copyright infringement, if the third party imitates the drawing method to draw a different picture, this does not constitute a copyright infringement.

In this way, copyright protection is restricted to the concrete expression of thoughts or sentiments and the principle that protection does not extend to the idea from which the expression emanated is known as the “idea/expression dichotomy”. The principle was based on the view that, since ideas give birth to a variety of expressions and making an idea exclusive to a specific person would form an impediment to the expressive activities of other creators, copyright protection should be denied and ideas made freely available for exploitation by the maximum number of people. Whilst Japan 's Copyright Act does not provide directly for the idea/expression dichotomy, it does confirm the principle by expressly stating in relation to the protection of software program works, in Article 10(3)(i) to (iii) respectively, that the protection does not extend to any programming language, rule or algorithm used for making such works.

Examples of cases where copyrightability has been rejected on the basis that protection is being sought for an idea are: the Monkfish Oil Lampstand Case concerning the style, brushwork and texture of an artistic work, Kyoto District Court, 19 October 1995 , Chitekisaishu Vo. 27. No. 4: 721; the Blue Light-Emitting Diode Thesis Case concerning the discoveries and numerical formulae relating to the natural sciences, Osaka District Court, 25 September 1979, Hanrei Taimuzu No. 397: 152, Osaka High Court, 25 February 1994, Chitekisaishu Vol. 26 No.1: 179; the Basic Knowledge on Japan's Castles Case concerning academic definitions, Tokyo District Court, 25 April 1994, Hanrei Jiho No. 1509: 130; the Bookkeeping Classification Board Case concerning technical thoughts, Osaka High Court, 29 March 1963, Kaminshu Vol. 14 No. 3: 509; the Perpetual Calendar Case, Osaka District Court, 26 January 1984, Mutaireishu Vol. 16 No. 1: 13; the Gateball Rulebook Case concerning the rules of a game, Tokyo District Court, Hachioji Branch, 10 February 1984, Mutaireishu Vol. 16 No. 1: 78; the Popeye Necktie Case concerning a manga character (abstract characteristics including figure, looks and personality), Supreme Court, 17 July 1997, Minshu Vol. 51 No. 6: 2714; and the Kerokerokeroppi Case, Intermediate Appeal, Tokyo High Court, 23 January 2001, Hanrei Jiho No. 1751: 122.

(3) Originality

In order to receive copyright protection, it is necessary for a work to be original. The originality mentioned in this context does not require novelty or creativity, a work need only be original to the extent that some aspect of the author's individuality is apparent ( Election Tip Sheet Case, Second Instance, Tokyo High Court, 19 February 1987, Mutaisaishu Vol. 19: No. 1: 30; Yotsuya Otsuka Commentary Case, Tokyo High Court, 12 February 1998, Hanrei Jiho No. 1645: 129; SMAP Interview Article Case, Tokyo District Court, 29 October 1998, Hanrei Jiho No. 1658: 166. There is merit in the individuality of an author being apparent in relation to a cultural fruits such as works. Further, since there are no objective standards for determining the value of cultural assets like works, if novelty and creativity were required as prerequisites for protection, the problem of conflicting determinations by different courts as to copyrightability would also arise ( Hotel Junkies Case, Second Instance, Tokyo High Court, 29 October 2002 , Supreme Court Website). It is accordingly understood that copyrightability should be accepted in a broad range of circumstances so long as the author's individuality is apparent in the production.

The following are instances of cases where originality was rejected.

Firstly, originality will be rejected in regard to productions that are no more than copies of existing productions. This is because even in cases where an equivalent level of effort or skill is required to replicate an existing work, if the result is no more than a faithful copy, without alteration, of the expression of the existing production, then the individuality of the person carrying out the copying is not apparent. Case precedents have found originality was lacking in a photograph taken with the aim of faithfully reproducing a woodblock print ( Woodblock Print Photograph Case; 30 November 1998, Chitekisaishu Vol. 30 No. 4: 956), and in a copy that portrayed an existing painting in almost identical form ( Edo Genre Painting Copy Case I, Second Instance, Intellectual Property High Court, 26 September 2006; Edo Genre Painting Copy Case I, First Instance, Tokyo District Court, 23 March 2006, Supreme Court Website; Edo Genre Painting Copy Case II, Intellectual Property High Court, 29 November 2006; Edo Genre Painting Copy Case II, First Instance, Tokyo District Court, 11 May 2006).

Secondly, in cases where the nature of the expression is such that the choice of expression is limited, or the expression would have to be almost the same no matter who authored it, the author's individuality is not apparent and creativity will be denied. In terms of case precedents, originality was rejected on the grounds of trite and mediocre expression in the context of standard written greetings ( Last Message Case, Tokyo District Court, 18 December 1995) and newspaper article headlines ( Yomiuri Online Case, Intellectual Property High Court, 15 March 2006 ).

(4) “Falls within the literary, scientific, artistic or musical domain”

Works must fall within the literary, scientific, artistic or musical domain. In other words, in order to be a work a production must be the fruits of culturally creative activities carried out by humans ( Election Tipping Sheet Case, Tokyo High Court, 19 February 1987, Mutaisaishu Vol. 19 No. 1: 30). This requirement was established in order to distinguish between the Copyright Act and theIndustrial Property Act . To illustrate, whilst machinery and other industrial goods could also be regarded as original expressions of scientific thought, since they are necessities that are manufactured in large quantities and not cultural fruits, they will not be found to be copyrightable. These industrial goods are protected under industrial property laws, including the Patent Act .

(3) Examples of Works

(a) Literary works - Article 10(1)(i)

Literary works means works expressed through linguistic systems, including the novels, dramas, articles and lectures mentioned in Article 10(1)(i). Literary works incorporates oral works in abstract form, such as rakugo (comic storytelling) or manzai (comic dialogue), in addition to works created in concrete written form.

Poetry, tanka (31-syllable poems) and haiku (17-syllable poems), whilst short in length are protected as works so long as they fall within the definition in Article 2(1)(i) ( Classical Play on Words Case, First Instance, Tokyo District Court, 29 January 1999, Hanrei Jiho No. 1680: 119; Traffic Slogan Case, Second Instance, Tokyo High Court, 30 October 2001, Hanrei Jiho No. 1773: 127). Provided, however, that it becomes increasingly difficult to uphold the presence of originality as an expression shortens, since choice of expression is increasingly limited ( Yomiuri Online Case, Second Instance, Tokyo High Court, 6 October 2005 ).

(b) Musical works - Article 10(1)(ii)

Musical works are works expressed by means of sound. Although lyrics are, in themselves, literary works under Article 10(1)(i), where they are used simultaneously with a piece of music this falls under musical works in Article 10(1)(ii).

(c) Choreographic works and pantomimes – Article 10(1)(iii)

Choreographic or pantomime works include ballet and pantomimes where the work is expressed by bodily gestures and action. Protected as works here are the choreography of performances and not the actual act of performing the same. The actual performances are separately protected by means of neighboring rights.

(d) Artistic works – Article 10(1)(iv)

Artistic works are works expressed in either two or three dimensions by means of shape, color and the like. Although the Copyright Act gives paintings, woodblock prints and sculptures as examples of artistic works, other productions that are aimed at the pursuit of aesthetic expression will also fall within works. One-off goods intended for every day use, as in the case of ceramic teacups are also protected as artistic works on the basis that they are aimed at the pursuit of aesthetic expression (Article 2(2)).

The issue arises in relation to artistic works of whether features such as the forms or models for mass-produced practical items are protected as works. Such forms or models are generally known as “applied art” and distinguished from “fine art”, such as one-off paintings or sculptures. As applied art is, in general, intended to be protected by the Design Act it is, in principle, denied copyrightability as not falling within artistic works, however productions that possesses aesthetic qualities capable of being treated as fine art will be protected as artistic works, even if they are applied art ( Hakata Doll Case, Nagasaki District Court, Sasebo Branch, 7 February 1973, Mutaishu Vol. 5 No. 1: 18; Buddhist Altar Sculpture Case, Kobe District Court, Himeji Branch, 9 July 1979, Mutaireishu Vol. 11 No. 2: 371; Decorative Wood Veneer Case, Tokyo High Court, 17 December 1991, Chiteki saishu Vol. 23 No. 3: 808 , Furby Case, Second Instance, Sendai High Court, 9 July 2002, Hanrei Jiho No. 1813: 145, Monster Figurine Case, Second Instance, Osaka High Court, 28 July 2005.)

As in the case of applied art, copyright protection for typefaces as artistic works is also problematic. A typeface is a set of designs of letters and symbols produced pursuant to a unified concept to enable practical use in the printing of Chinese characters, the Japanese syllabary and the English alphabet in documents, newspapers, magazines and similar. Whilst the designer's individuality is apparent in the creation of a typeface, on the other hand since typefaces are in broad use as a means of expression if copyright protection were given too readily this would risk a severe impediment to the circulation of expression. In consideration of this point the Supreme Court ( Nakamura Gothic Typeface Case, Appeal to Court of Last Resort, 7 September 2000, Minshu Vol. 54 No. 7: 2481 ) held that in order a typeface to be protected as a work, “it must be endowed with originality such that its features are remarkable in comparison with existing typefaces, and must, in itself, have special aesthetic qualities capable of aesthetic appreciation.”

(e) Architectural works – Article 10(1)(v)

Architectural works are the aesthetic expression apparent in the structure or exterior of buildings. Gardens, bridges and pagodas and similar are also architectural works ( Noguchi Room Relocation Case, Tokyo District Court, 11 June 2003, Hanrei Jiho No. 1840: 106) Only buildings possessed of artistry or beauty capable of evaluation as architectural works are protected. Ordinary buildings, exemplified by ready-built housing are not protected as architectural works ( Shinobu Design Case, Fukuoka District Court, 9 April 1991, Chitekisaishu Vol. 23 No. 1: 228; Sekisui House Case, Osaka High Court, Second Instance, 29 September 2004, Supreme Court Website).

(f) Figurative works – Article 10(1)(vi)

Figurative works means maps and plans, charts and models and similar productions of a scientific nature. A wide range of works of a scientific nature, from two-dimensional works such as maps ( Toyama City Suburban Map Case, Toyama District Court, 22 September 1978, Hanrei Taimuzu No. 375: 144; Fieldwork Tama Case, Tokyo District Court, 23 January 2001, Hanrei Jiho No. 1756: 139), blueprints ( Round-Bar Leveler Case, Osaka District Court, 30 April 1992, Chitekisaishu Vol. 24 No. 1: 292; Kitamura Architecture & Design Case, Tokyo District Court, 28 January 1977, Mutaisaishu Vol. 9 No. 1: 29; Refrigerated Warehouse Blueprint Case, Osaka District Court, 23 February 1979, Hanrei Taimuzu No. 387: 145; Kobayashi Building Blueprints Case, Tokyo District Court, 20 June 1979, Mutaisaishu Vol.11 No. 1: 342), and graphs and illustrations ( Guide to Passing the Real Estate Licensing Test Case, Second Instance, Tokyo High Court, 16 May 1995, Chitekisaishu Vol. 27 No. 2: 285) to three-dimensional works such as world globes and models of the human body come within figurative works.

(g) Cinematographic works – Article 10(1)(vii)

Cinematographic works means a production expressed creatively through continuous images, which are fixed in material form. Whilst a cinematographic production shown at a movie theatre is representative of cinematographic works, since the Copyright Act provides in Article 2(3) that the term includes “works expressed by a process producing visual or audio-visual effects analogous to those of cinematography and fixed in material form”, even productions such as images recorded on a video or DVD that are not intended to be shown in a theatre or highly visual game software will be included in cinematographic works ( Pacman Case, Tokyo District Court, 28 September 1984, Hanrei Jiho No. 1129: 120; Second-Hand Game Software Case, Second Instance, Osaka High Court, 29 March 2001, Hanrei Jiho No. 1749: 3).

There are special rules relating to cinematographic works concerning the scope of authors covered (Article 16), ownership of copyright (Article 29), the duration of copyright protection (Article 54) and distribution rights (Article 26).

(h) Photographic works – Article 10(1)(viii)

Photographic works are productions that use a camera to creatively express visual phenomena such as people or scenery on film or similar. Since the creation of photographic works is highly dependent on equipment, and anyone can take a photograph with ease by pointing a camera at a photographic subject and pushing the shutter, the question of originality is often disputed, however so long as the photographer's individuality is apparent from the decisions taken on the choice of subject and location, the composition, focal speed, exposure and shutter speed and the processing of the image after it was taken, originality will be recognized ( Sanko Shoji Case, Osaka District Court, 28 March 1995, Chitekisaishu Vol. 27 No. 1: 210; Stone Wall Photograph Case, Sendai High Court, 30 January 1997, Hanrei Taimuzu No. 976: 215; Dolphin Photograph Case, Tokyo District Court, 26 March 1997, Hanrei Jiho No. 1694: 142, Sekisui House Case, Osaka High Court, 30 October 2003, Hanrei Taimuzu No. 1146: 267). There is a case precedent that held against the presence of originality in relation to a photograph aimed at faithfully reproducing a two-dimensional photographic subject ( Woodblock Print Art Case, Tokyo District Court, 30 November 1998, Hanrei Jiho No. 1679: 153).

(i) Program works – Article 10(1)(ix)

Under Article 2(1)(x-ii) of the Copyright Act , “ “program” means an expression in the form of a combination of instructions given to a computer as to enable it function and achieve a certain result”. It is necessary, in order to have a computer perform a task, to give the computer specific instructions on the task's content and procedures and this combination of instructions is a program. No inquiry is made as to the use or type of the program, from operating systems, to application software to programs incorporated into household electrical goods. Both source programs in programming languages (capable of being read by a human) and object programs, which convert source programs to machine languages (capable of being read by machines, this process being known as compilation) are programs. Modules, which are used as program components can also be regarded as programs in themselves if they are combinations of instructions sufficient to have a computer carry out a meaningful and separate task.

Article 10(3) establishes that even within programs that are works, it is those that are specifically expressed as programs that are protected. The ideas from which programs were created are not protected.

As with other works, in the case of programs, it is those in which something of the programmer's individuality is apparent that are protected as works. Novelty and an inventive step are not required and originality will only be rejected in cases where the choice of expression was limited or mundane ( Drafting Program Case, Tokyo District Court, 31 January 2003, Hanrei Jiho No. 1820: 127). As programs are written in strict language systems, the restrictions on expression are numerous in comparison with literary works in general, however since in programs of a certain scale the choice of expression is fairly broad, originality is usually upheld ( Basic Interpreter Case, Tokyo District Court, 30 January 1987, Hanrei Jiho No. 1219: 48). Provided, however, that in short programs such as modules, in cases where if the content processed is fixed the programming method is also necessarily fixed, originality will be found to be lacking. Further, since programs are created thinking of the functionality and efficiency of processing information using computers, even if a number of combinations of instructions for carrying out a certain process are in existence, originality will be rejected where the means of expression are limited in terms of processing speed and efficiency. ( System Science Case, Tokyo High Court, 20 June 1989, Hanrei Jiho 1322: 138; IBF Badge File Case, Tokyo District Court, 27 February 1991, Chitekisaishu Vol. 23 No. 1: 138.

(4) Special Works
(a) Derivative works - Article 2(1)(xi)

Derivative work means a work created by the translation, musical arrangement, transformation or dramatization, cinematization or other adaptation of an existing work. Illustrations include the translation into Japanese of a foreign novel (translation), the arrangement of a classical piece as jazz (musical arrangement), the expression of a painting in the form of a sculpture (transformation) and the dramatization of a novel or manga (adaptation).

The existence of unique original expression differing from the existing work is a requirement in order for a production to be a derivative work. Productions that faithfully imitate the expression of the existing work or that make a few modifications or variations are mere copies and do not constitute derivate works ( Edo Genre Painting Copy Case I, Second Instance, Intellectual Property High Court, 26 September 2006 ; Edo Genre Painting Copy Case I, First Instance, Tokyo District Court, 23 March 2006, Supreme Court Website; Edo Genre Painting Case II, Intellectual Property High Court, 29 November 2006; Edo Genre Painting Case II, First Instance, Tokyo District Court, 11 May 2006).

Copyright arises in relation to a derivative work when that derivative work is created. Article 11 stipulates that the copyright on the derivative work and the copyright on the existing work are separate bundles of rights and the protection of the derivative work does not affect the rights over the existing work. Article 28 provides that when a derivative work is exploited, such as through the publication of the translation of a novel, the consent of both the author of the derivative work and the author of the existing work are required.

Since a derivative work receives protection on the basis that new original expression has been added to the existing work, the copyright protection for derivative works extends only to the newly bestowed original expression and does not cover expression that is the same as the existing work. It is obvious that where it is only the expression of the existing work within the derivative work that has been exploited, then the owner of the copyright on the derivative work cannot exercise their rights ( Popeye Necktie Case, Supreme Court, 17 July 1997, Minshu Vol. 51 No. 6: 2714 , Kewpie Doll Case, Tokyo High Court, 30 March 2001, Hanrei Jiho No. 1797: 111).

(b) Compilations - Article 12

Article 12(1) provides that “compilations” means those compilations which are original by reason of the selection or arrangement of their content. The content of a compilation is not limited to works. Compilations comprised of collections of productions such as poems or paintings, and even those comprised of facts or data, such as terminology dictionaries or business telephone directories will be protected as compilations if originality is recognized in the selection or arrangement of the content ( Glossary of American Terminology Case, Tokyo High Court, 14 November 1985, Mutaishu Vol. 17 No. 3: 544; Town Pages Business Telephone Directory Case, Nagoya District Court, 18 March 1987, Hanrei Jiho No. 1256: 90). A court has held that all the display screens in a business software package fell within a compiled work on the basis of the systematic selection and arrangement of the individual screens ( Cybozu Case, Tokyo District Court, 5 September 2002, Hanrei Jiho No. 1811: 127).

Within a compilation, it is the fruit of the specific selection and arrangement of the content, the compilation itself that is protected. The ideas behind the compilation, such as the editorial policy or methods are not protected as works ( Chiezo Case, Second Instance, Tokyo High Court, 28 October 1989, Hanrei Jiho No. 1701: 146; Color Chart Case, Tokyo District Court, 23 March 2000, Hanrei Jiho No. 1717: 140; Keiko & Manabu Case, Second Instance, Tokyo High Court, 29 March 2005, Supreme Court Website).

In order for a compilation to be protected, the selection and arrangement of the content must be original. It is acceptable if either the selection or the arrangement of the content is found to be original. Even if effort and cost is expended in collecting content, the compilation will not be protected as a work if originality is found to be lacking in the selection or arrangement of the content ( List of Seicho Matsumoto Novels Case, Tokyo District Court, 25 February 1999, Hanrei Jiho No. 1677: 130).

Copyright arises when a compilation is created. Article 12(2) provides that the copyright on the compilation and the copyright on the content are separate bundles of rights and the protection of compiled works does not affect the rights of the authors of the works forming the content. Since in cases where compiled works are exploited, this will be accompanied by exploitation of the constituent materials, where the constituent materials are works, the copyright protection on the constituent works is superimposed under Article 28. Accordingly, those who exploit the compiled work must obtain both the consent of the owner of the copyright on the compilation and of the owners of the copyright on the constituent works.

Since the copyright on a compilation protects the originality in the selection and arrangement of the content, it extends only to where that originality in selection and arrangement is exploited and does not cover acts where a single constituent material or small amounts of constituent materials are exploited.

(c) Database works - Article 12-2

Article 2(1)(x-iii) provides that database works means “an aggregate of information such as articles, numerical values or diagrams, which is systematically constructed so that it can be searched using a computer”. Article 12-2(1) establishes that database works refer to those databases that are original in their selection of information or systematic construction.

Database works have a commonality with compiled works in that they are aggregations of information. However, in database works, unlike with compiled works, the physical placement of the information on storage media on which it is fixed is not significant. What is significant is the “systematic structure” allowing required information to be searched for on the storage media using a computer, and it follows that since what is needed is creative activity differing from that for a compiled work (the systematization of data, the abstracting of information, the selection and addition of keywords etc.), the law in its present form regulates database works as works separate from compilations. Note that whilst a database is used on a computer system, the program that operates the database is, in the end, a program and not included in the database work.

In order for a database to be protected as a work, the selection of information and systematic structure must be found to be original ( Town Page Database Case, Tokyo District Court, 17 March 2000, Hanrei Jiho No. 1714: 128; Core-Net Database Case, Tokyo District Court, 21 February 2002, Supreme Court Website). In other words, it is enough for either the selection of information or the systematic structure to be found to be original and there is no need for both to fulfill that requirement. Although it is common for the creation of databases to involve considerable investment, a database will not be protected as work if it lacks originality in the selection of information or its systematic structure, no matter how much was invested ( Car Database Case, Tokyo District Court, 25 May 2001, Hanrei Jiho No. 1774: 132).

Copyright arises when a database work is created. The copyright on a database is a separate bundle of rights to the copyright on the information contained in the database and, under Article 12-2(2), the copyright protection of the database does not affect the rights of the owners of copyright on works that comprise parts of the database. Since where a database work is exploited, this will be accompanied by the exploitation of the information loaded into the database, where that information are works, Article 28 provides that the copyright on that information is superimposed, so that a person who exploit the database must obtain the consent of both the owner of the copyright on the database and the owners of the copyright on the information.

Since the copyright on databases protects the originality of the selection of information or its systematic organization, that protection extends only to cases where the selection of the information in the database or its systematic organization is exploited, and does not extend to acts where a portion of the information in the database is extracted for exploitation.

(5) Works not Protected by Copyright - Article 13

Even where a production falls within the definition of works in Article 2(1)(i), if by reason of its nature there is a need for the production to be broadly known amongst the populace, then Article 13 provides an exception under which coverage is withheld. In specific terms the following fall within this exemption; the Constitution of Japan and other laws and regulations - Item (i), notifications, instructions, circulars and the like issues by State, local government and independent administrative institutions – Item (ii), judgments, rulings, orders and determinations made by courts of law, as well as administrative decisions and rulings made by administrative bodies in quasi-judicial proceedings – Item (iii) and translations and compilations of the productions mentioned in Items (i) through (iii) prepared by State or local government institutions or the like – Item (iv).

2. Authors

Shigeki Chaen
Professor of Law
Osaka University Law School

1. Overview

The Copyright Act prescribes the rights of authors for the purpose of protecting works. The rights of authors, in other words, authors' moral rights, which protect the moral interests of authors, and copyright, which protects the property rights of authors, originally belong to authors (see Article 17(1) Copyright Act ). Since the enjoyment of the author's moral rights and copyright requires no formalities whatsoever (Article 17(2)), authors acquire the author's moral rights and copyright at the time a work is created. Whilst copyright may be transferred (Article 61(1)), as the author's moral rights belong exclusively to the author and are inalienable (Article 59), the person in possession of the author's moral rights is always the author.

“ Author” is defined as “the person who creates a work” (Article 2(1)(ii)). It follows that the person who created a work will enjoy the rights of an author in relation to that work.

However, for works created by employees during their course of their duties, under certain conditions, the employer becomes the author. For this reason, the employer will enjoy the rights of an author in relation to a work created by the employer's employee (Article 15).

Further, there is a prescribed exception to the general principle that the author will enjoy the author's moral rights and copyright, for cinematographic works. In terms of copyright in a cinematographic work, if the author has entered into an undertaking with the cinematographic producer to participate in the production of the relevant cinematographic work, the copyright in the cinematographic work belongs to the cinematographic producer (Article 29(1)).

2. Authors

As mentioned above, Article 2(1)(ii) of the Copyright Act defines “author” as “the person who creates a work”. Since a work is production in which “thoughts or sentiments are expressed in a creative way”, the creation of a work means the act of creatively expressing thoughts or sentiments, and the person who carries out an act of this description is an author. In cases where only one person is involved in the creation of a work it is a simple matter to acknowledge the author. In contrast, where several persons are involved in the creation of a work, there are situations where it is difficult to identify who carried out the creative act. This paper deals in a later section with the question of joint works created jointly by several persons.

Turning to the person who carried out the creative act, persons who gave instructions for, or placed the order for the creation of the work but did not themselves engage in creative expression, or who did no more than provide abstract ideas, knowhow or materials will not be held to be authors. In the Tokyo District Court decision of 26 December 1964, the matter in dispute was [1] whether the author of a map, which the Plaintiff publishing company had instructed an artist to create, was the publishing company or the artist. The publishing company had planned the map and a publishing company employee had gathered materials for the map when instructions were placed with the artist. Further, the editor-in-chief of the publishing company had specified to the artist the important roads and the like that were to be included in the map and had explained locations not immediately apparent from the materials to the artist. The court held that the artist was the author of the map on the basis that, “Whilst on the one hand the artist endeavored, so far as was possible, to follow the Plaintiff's wishes by incorporating the locations in the publishing company's instructions and order into the screen, pursuant to the materials provided by the Plaintiff and the results of the on-site survey, in terms of the specific expression of the same through diagrams and designs, it was the free use of the artist's artistic senses and technical skill, through means created by the artist, that the Plaintiff's original map was created.”

Further, a decision of the Supreme Court of 30 September 1993, [2] in which the issue concerned the editor of a compilation containing poetry created by a particular poet, held that the poet in question was the author, on the basis that whilst the editor had shown the poems and similar that were candidates for inclusion to the poet and had advised the poet on the compilation process, this advice had gone no further than the stage of a proposal and concept, and the poet in question had finalized the selection and arrangement of the poetry and other material.

Persons who have played no more than an auxiliary role in the creation of a work will also not qualify as authors. As an illustration, a Tokyo District Court decision of 18 February 2004 [3] held, in relation to a book on domestic violence, that Y 1 , who had written the first draft, made corrections and then finalized the last draft, was the author, replying as follows in response to the Plaintiff's assertions. “Whilst the Plaintiff definitely carried out activities including prompting the writing of the book on domestic violence, taking charge of planning an overseas trip to research foreign systems for dealing with domestic violence, deciding on destinations and making prior preparations, suggesting additions, deletions and amendments to Y 1 's draft, selecting Y 2 in concert with the publishing company and liaising and coordinating with Y 2 , since these activities cannot be said to have brought about the creative expression of the Plaintiff's thoughts and sentiments, the Plaintiff is not the person who created the book in question. The Plaintiff argues, in this regard, that the book should be understood as having been created by the Plaintiff because the Plaintiff planned the book pursuant to basic ideas held by the Plaintiff. Nonetheless, the various activities undertaken in order to realize such basic ideas equated to acts of providing ideas and materials for Y 1 to write the book, and should not be understood as creative acts.” [4]

A person whose name, or similar, is indicated as the name of the author in the customary manner on an original work, or when the work is offered to or presented to the public, is presumed to be the author of that work (Article 14).

3. Joint Works

When, although several persons have been involved with the creation of a work, only one of those persons was responsible for the creative expression, that person acquires the author's rights as author, and may exercise the same at his or her personal discretion. The case where two or more persons were responsible for the creative expression, however, deserves consideration.

The Copyright Act contains a number of provisions on joint works. A joint work is defined by Article 2(1)(xii) as (a) a work jointly created by two or more persons, in which (b) the contribution of each person cannot be separately exploited.

Firstly, for a particular work to be a joint work, it must have been jointly created by two or more persons. Joint works are not limited solely to cases where each person ' s creative acts were carried out simultaneously; even cases where the acts were carried out at different points are acceptable. Opinions differ as to whether or not it is necessary for there to be an intention to create jointly between each of the persons who created the work. The view that a joint intention is not necessary claims that it will suffice, for example, if on an objective view there was a relationship between the parties to the extent that their intentions were not mutually opposed, and there is no need to go as far as requiring connected intentions. According to this position, a work resulting from B having corrected or supplemented A ' s work after A ' s death could become a joint work, with A and B as joint authors.

However, as is stated later, since restrictions are placed on the exercise of each author ' s rights in the case of joint works, in order for it to be appropriate that such restrictions be imposed, the preferable view is no doubt that there must be an intention to create jointly.

The second requirement prescribed for a work to be a joint work is that the contribution of each person cannot be separately exploited. As with music and lyrics, or a novel and its illustrations, works where the contribution of each person can be separately exploited are not joint works. [5]

The co-authors ' moral rights in relation to a joint work may not be exercised unless by the unanimous agreement of the co-authors (Article 64(1)), since the exercise of an author ' s moral rights by a particular co-author would infringe the moral rights of the other co-authors. Provided, however, that there is provision that each co-author may not act in bad faith to prevent that agreement from being reached (Article 64(2)) in order to avoid unnecessary impediments to the exploitation of works through opposition from some co-authors.

The “ exercise ” of the author ' s moral rights means the realization of the specific features of those rights. For example, this could mean changing the indication of the author ' s name, making public a work that had not yet been made public, or altering the content of a work. A demand for cessation of acts infringing the author ' s moral rights does not fall within “ exercise ” in this sense and each co-author may make such a demand separately as an individual. Article 117(1) is an express provision to this effect. In contrast, there is no express provision in relation to claims for damages for infringing acts and views diverge; one view holding that the unanimous agreement of all co-authors is required, the other holding that each co-author may make claim damages individually.

The co-authors of a joint work may choose a representative from among them to exercise their authors ' rights (Article 64(3)) and limitations on the authority of the representative will not be effective against a third party acting in good faith (Article 64(4)).

The copyright on a joint work is held jointly by the co-authors (jointly-owned copyright is known as “ joint copyright ” ), however, no co-owner may transfer or pledge their share without the agreement of the other co- owners (Article 65(1)). Further, joint copyright may not be exercised without the unanimous agreement of the co-owners (Article 65(2)). This is a mechanism designed to ensure the seamless exploitation of works. The rationale for the unanimous agreement of the co-owners being required for transfers or pledges of co-owners is that the identity of co-owners has a major impact on the interests of other co-owners, since the unanimous agreement of the co-owners is required to exercise joint copyright,. Provided, however that no co-owner may refuse to agree to the transfer or pledging of a share or prevent an agreement on the exercise of joint copyright being reached, without reasonable grounds (Article 65(3)).

The Tokyo District Court ' s decision of 29 October 1999 [6] dealt with whether or not there were “ reasonable grounds ” for refusing to agree to the transfer of a co-owner ' s share. As A, which held a half share in the copyright on a nursery tale film had gone bankrupt, the bankruptcy administrator, X, attempted to sell that share to B. However Y, which held the other half share refused to agree to the transfer. X filed suit against Y seeking to obtain Y ' s agreement. The court held, pursuant to the following facts, that Y did not have reasonable grounds for refusing to agree and upheld X ' s claim: 〈1〉 B had sold the work in question with A ' s consent and had subsequently obtained Company Y ' s consent; 〈2〉 X had advertised amongst interested parties, including Y, seeking a buyer for A ' s share; 〈3〉 As B replied to the advertisement, X sought Y ' s agreement to the transfer to B, and at the same time notified Y that X was prepared to sell the share to Y if Y met the purchase price offered by B; 〈4〉Y gave notice only of the fact that Y would not agree to the transfer to B and did not itself offer to purchase the share.

Further, in the Tokyo District Court decision of 28 September 2000 [7] in relation to “ reasonable grounds ” for refusing to agree to the exercise of joint copyright, the court held, “ In light of the fact that if it is found that there are reasonable grounds, this will impede the exercise of the rights of the other co-owners who desire to exercise the joint copyright, and weighing up the type, nature and detailed features of the work, as well as the degree of societal demand for the work, the changes in social conditions during the period from the creation of the work to the present, the relationships between each of the co-authors of the joint work, the course of events leading to the creation of the work, the extent of each co-author ' s contribution to the creation of the work, the details of the disadvantage other co-owners will suffer due to being unable to exercise their rights and the other various circumstances in existence at the close of oral argument, even considering the fact that the other co-owners will suffer the disadvantage of being unable to exercise their rights, in cases where it is accepted that circumstances exist such that the interests of the co-owner that does not wish to exercise the joint copyright should be protected, it is appropriate to find that “ reasonable grounds ” exist. ”

In concrete terms the “ exercise ” of joint copyright means the licensing of the work or the establishment of rights of publication. Demands for cessation in relation to copyright infringement do not fall within “ exercise ” . Article 117 of the Copyright Act provides to the effect that each co-owner may act as an individual to demand cessation of copyright infringements and claim damages or the return of unjust enrichment corresponding to his or her share.

As in the case of the author ' s moral rights in relation to joint works, the co-owners of joint copyright may choose a representative from among themselves to exercise the joint copyright and any limitations imposed on the representative ' s authority may not be asserted against a third party acting in good faith (Article 65(4)).

4. Workplace Inventions

Whilst the author to whom rights belong is defined as “ the person who creates the work ” , Article 15 of the Copyright Act provides that where the following requirements are fulfilled, it is not the employee who actually created the work but that employee ' s employer who will be the author.

(i) The work was created on the employer ' s initiative;
(ii) The employee created the work in the course of his or her duties;
(iii) The employer made the work public under the employer ' s own name;
(iv) There was no stipulation to the contrary in a contract, work rules or the like at the time the work was created.

The employer will be the author in relation to program works even in cases where requirement (iii) above is not met.

This provision has the feature, through making the employer the author, of placing ownership of not only copyright, which is transferable, but also the author ' s moral rights, which are inalienable, in the employer. In light of the fact that in relation to creative activity carried out within corporations, the identity of the creator is unclear to outsiders and in many cases a number of people have been involved so that there are joint authors, the aim of this provision is to facilitate the exploitation of works by concentrating authors ' rights in employers.

The requirement that a work be created on the initiative of the employer is a requirement that the intention to create the work depended on the employer ' s decision and is not limited to cases where the employer gave clear instructions or orders. There is an influential view that where an employer has assigned an employee to certain duties, and it is anticipated and expected that certain works will naturally be created by that employee in the course of those duties, those works will have been created at the initiative of the employer. Under this view, the requirement that a work be created at the employer ' s initiative is likely to subsumed within the requirement that the work be created in the course of the employee ' s duties.

In order for the employer to be the author, the requirement that the work in question was created by a person who is the employer ' s employee in the course of his or her duties must be met. In some cases a work will be held to have been created “ in the course of the employee ' s duties ” even if it was created outside working hours, or at a place other than the prescribed place of work, whereas in others, a work will not have been created “ in the course of the employee ' s duties ” , even though it was created within working hours at the prescribed place of work. One decision has held, in relation to whether or not a work was created “ in the course of the employee ' s duties ” that “ the question is decided after comprehensive consideration of the circumstances, including the details of the employer ' s work, the type and content of the work in which the employee who created the work was engaged, the hours and location at which the creation of the work was carried out, the presence or otherwise and features of any control and supervision of the creation of the work by the employer, the type and content of the work and the circumstances in which the work was made public. ” [8]

In terms of the requirement that the employee be “ a person engaged in the employer ' s work ” , firstly, there is no dispute that a person in an employment relationship with the employer will qualify. The Supreme Court decision of 11 April 2003 [9] held as follows, "Article 15(1) of the Copyright Act provides to the effect that in circumstances where a person engaged in the work of the employer creates a work on the employer ' s initiative, as the execution of his or her duties, under control and supervision, and that work is made public under the name of the employer, the author of the work designated by that paragraph will be the employer. In order for an employer to treated as the author under the provisions of that paragraph, the person who created the work must be “ a person engaged in the employer ' s work ” . Whilst it is clear that a person in an employment relationship with the employer will satisfy this requirement, in cases where the employment relationship is in dispute, when it is desirable to look at the substance of the relationship between the employer and the person who created the work in order to determine whether or not that person falls within “ person engaged in the employer ' s work ” in that paragraph, comprehensive consideration should be given to the specific circumstances in order to make that determination, including whether the person actually provided labor under the control and supervision of the employer and whether the monies paid by the employer to that person could be regarded as constituting consideration for the provision of that labor, the terms under which the person worked, the presence or otherwise of control and supervision and the amount and method of payment of the consideration. ”

Secondly, many case precedents have found that persons who are not in employment relationships with the employer also fall within “ a person engaged in the employer ' s work ” . These have included a cram school tutor who was not in an employment relationship with the cram school, but who created examination questions while engaged in overseeing tutoring on a Sunday and a freelance writer who was not formally an employee of a publishing company, but who created articles for a magazine published by the publishing company. Both were held to be “ persons engaged in the employer ' s work ” . [10] In case precedents subsequent to the Supreme Court decision of 11 April 2003 mentioned above, the courts have held, in line with the Supreme Court, that even in cases where there is no employment relationship between the employer and creator, the question of whether or not a creator is a “ person engaged in the employer ' s work ” should be determined by whether or not the person actually provided labor under the control and supervision of the employer and whether the monies paid by the employer to that person could be regarded as constituting consideration for the provision of that labor. [11]

Although the requirement that the employer make the work public under the employer ' s own name will clearly be met if the employer has planned to do so and has actually done so, the requirement will also be met if it is planned to make the work public under the employer ' s name but this has not yet taken place. This is because the identity of the author must be decided at the time the work was created and this requirement will therefore be determined as at that time. The question of whether or not this requirement has been fulfilled is not influenced by events subsequent to the creation of the work.

The courts have stated that this requirement will also be met for works where there is no plan to make the same public if, supposing they were made public, the employer ' s name would be used. [12]

There is no need for a requirement that the employer make the work public under the employer ' s name in the case of program works. This is due to the fact that such a requirement would bring about undesirable results, as it is common for there to be no plan to make a program public, and supposing a program were to be made public, it would frequently be made public, not under the name of the enterprise that created the program, but anonymously or under a name other than that of the person who created the program, as with programs on CD-ROM installed on computers or created by sub-contractors. It follows that the employer will be the author for all and any programs that have not been made public, that have been made public anonymously, that have been made public under the name of another enterprise or that have been made public under the individual name of an employee, where the program falls within the requirements other than that the employer makes the work public under the employer ' s name.

Lastly, for an employer to become the author of a work, it is necessary for there to have been no stipulation to the contrary in a contract, work rules or similar that was in force at the time the work was created. Where there is a stipulation to the contrary, to the effect that the employee will be the author of any work, the employee becomes the author. The stipulation to the contrary must be in existence at the time the work is created. If the employer becomes the author on the basis that the stipulation to the contrary was not in existence at the time of creation, the employee does not become the author even if a stipulation to the contrary is subsequently established. The rationale for this is that it would be detrimental to legal certainty if the author of a work could be altered by means of a contract or similar.

5. Cinematographic Works - Authors and Copyright Owners

In light of the fact that numerous people are involved in a variety of ways with a cinematographic production, the Copyright Act establishes special provisions in relation to authorship and copyright ownership of cinematographic works.

Article 16 of the Copyright Act provides that the authorship of a cinematographic work will be attributed to “ those who … contributed to the creation of that work as a whole ” . The provision gives, as examples of such persons, those who took charge of “ production, directing, acting, filming or art ” . Cinematographic producers do not become the authors of cinematographic works. Article 16 contemplates that there will be several people who “ contribute to the creation of that work as a whole ” and where there actually are several such people, the cinematographic work becomes a joint work. Further, Article 16 provides that “ authors of novels, scenarios, music or other works adapted or reproduced in that work ” are not included as authors of the cinematographic work.

Provided, however, that where the requirements prescribed in Article 15 of the Copyright Act are fulfilled, Article 16 does not apply and the employer becomes the author. Accordingly, when a producer has his or her own employees perform roles such as directing in the creation of a cinematographic work, the producer becomes the author of the work.

Article 29(1) provides, in relation to copyright on cinematographic works, that when the author of the work has agreed with the producer to participate in the production of the same, the copyright in the cinematographic work belongs to the producer. This leads to authors who are directors or similar holding the author ' s moral rights, but not the copyright in the work.

The reasons for this statutory transfer of copyright in cinematographic works to the producer are: ① historically speaking, the reality was, in regard to the exploitation of cinematographic works, that the right to exercise copyright was released to the producer by means of a contract between the producer and the author, ② cinematographic works are works of a peculiar nature, where the producer invests massive sums in production and carries out producing cinematographic works and making them public as a business, ③ there are numerous people who could become the authors of a cinematographic work and to acknowledge the exercise of copyright by all such persons would be to impede the smooth distribution of cinematographic works. [13]

There is no need for the entirety of copyright to be granted to broadcasters in relation to cinematographic works produced by such broadcasters, in terms of technical methods exclusively for broadcast. Such broadcasters own only (i) the rights to broadcast that work and the rights to diffuse the work by wire or to transmit that work to the public using a receiving apparatus, and (ii) the rights to reproduce that work or to distribute that work to broadcasters using the copies so reproduced (Article 29(2)). Similarly, for cinematographic works produced by wire diffusion operators, in terms of technical methods exclusively for wire diffusion, the rights that belong to the wire diffusion operator are limited to (i) the rights to diffuse that work by wire and to transmit the work diffused by wire to the public using a receiving apparatus, and (ii) the rights to reproduce that work or to distribute that work to wire diffusion operators using the copies so reproduced (Article 29(3)).

Note, since as was stated earlier, the authors of works that are novels, scripts or music are not included among the authors of cinematographic works, the copyright in these works is not subject to statutory transfer to the producer. This means that cinematographic producers must enter into contracts with the authors of these works for the transfer of copyright or licenses in order to exploit cinematographic works.

A cinematographic producer is defined as “ a person who initiates and is responsible for the production of a cinematographic work ” (Article 2(1)(x). To be more precise, this is the subject to whom the legal rights and duties in relation to the production of a cinematographic work belong, and as a reflection of that fact, the producer is regarded the subject of the financial income and expenses of the production. [14] Where one person plans a production and another person is commissioned to produce the cinematographic work, the producer is not the person who ordered the production, but the person who accepted the commission and personally bore the financial burden of undertaking the production. [15]

[1] See also Expressway Panorama Case, Tokyo District Court, 26 December 1964, Kakyu Minshu Vol. 15 No. 12: 311; Home Care Anyone Can Do Case, First Instance, Tokyo District Court, 31 March 1997, Hanrei Jiho No. 1606: 118; and Home Care Anyone Can Do Case, Second Instance, Tokyo High Court, 26 November 1998, Hanrei Jiho No. 1678: 133.
[2] Chieko Selection Case, Supreme Court, 30 March 1993, Hanrei Jiho No. 1461: 3. See also I Want to Become a Shell Case, Tokyo District Court, 31 March 1975, Hanrei Taimuzu No. 328: 362; The Big SMAP Investigation Case, Tokyo District Court, 29 October 1998, Chitekishu Vol. 30 No. 4: 812; Barefoot Gen Case, Tokyo District Court, 28 August 2002, Hanrei Jiho No. 1816: 132; Education and Teaching Materials for Infants Case, Tokyo District Court, 28 November 2003, Hanrei Jiho No. 1846: 90; Musical Theater Company Case, Tokyo District Court, 19 March 2004, Hanrei Jiho No. 1867: 112.
[3] Domestic Violence Publication Case, Tokyo District Court, 18 February 2004, Hanrei Jiho No. 1863: 102.
[4] See also the following court precedents: General Maps of the World Today Case, Tokyo District Court, 30 March 1979, Hanrei Taimuzu No. 397: 148; SM Photographs Case, Tokyo District Court, 20 June 1986, Hanrei Taimuzu No. 637: 209; Earth Whispers Case, Tokyo District Court, 17 September 1980, Mutaishu Vol. 12 No. 2: 456; Gentle Flame Case, Osaka District Court, 27 August 1992, Chitekishu Vol. 24 No. 2: 495; Space Battleship Yamato Case, Tokyo District Court, 25 March 2002, Hanrei Jiho No. 1789: 141; and Super Dimension Fortress Macross Film Case, Tokyo District Court, 20 January 2003, Hanrei Jiho No. 1823: 146.
[5] Cases where the courts found there was a joint work are The Tale of the Heike in English Translation Case, Osaka High Court, 26 June 1980, Mutaishu Vol. 12 No. 1: 266; Commercial Advertising Case, Osaka District Court, 29 March 1985, Mutaishu Vol. 17 No. 1: 132; Textbook Recorded Tapes Case, Tokyo District Court, 22 May 1991, Chitekishu Vol. 23 No. 2: 293; Gentle Flame Case, Osaka District Court, 27 August 1992, Chitekishu Vol. 24 No. 2: 495; Home Care Anyone Can Do Case, First Instance, Tokyo District Court, 31 March 1997, Hanrei Jiho No. 1606: 118; and Home Care Anyone Can Do Case, Second Instance, Tokyo High Court, 26 November 1998, Hanrei Jiho No. 1678: 133.
[6] Nursery Tale Film Case, Tokyo District Court, 29 October 1999, Hanrei Jiho No. 1707: 168.
[7] Tokyo District Court, 28 September 2000 (Case No. 7209 (wa) of 1999).
[8] Introduction to Intellectual Property Rights Case, Tokyo District Court, 12 November 2004 (Case No. 12686 (wa) of 2004).
[9] RGB Adventure Case, Supreme Court, 11 April 2003, Hanrei Jiho No. 1822: 133.
[10] See also Yotsuya Otsuka Case, Tokyo High Court, 12 February 1998, Hanrei Jiho No. 1645: 129; The Big SMAP Investigation Case, Tokyo District Court, 29 October 1998, Chitekishu Vol. 30 No. 4: 812; Last Words from Final Editions Case, Tokyo District Court, 18 December 1995, Chitekishu Vol. 27 No. 4: 787; Green Green Case, Tokyo District Court, 18 December 2002, Hanrei Jiho No. 1825: 107; and Super Dimension Fortress Macross Design Case, Tokyo District Court, 25 February 2002, Hanrei Jiho No. 1788: 129.
[11] Advertising Photographs Case, Osaka District Court, 17 January 2005, Hanrei Jiho No. 1913: 154; Goodbye Carol Case, Tokyo District Court, 15 March 2005, Hanrei Jiho No. 1894: 110.
[12] Niigata Tekko Case, Tokyo High Court, 4 February 1985, Hanrei Jiho No. 1190: 143; Accounting Functions Program Case, Nagoya District Court, 10 March 1995, Hanrei Jiho No. 1554: 136; System Science Case, Tokyo District Court, 30 October 1995, Hanrei Jiho No. 1560: 24.
[13] Super Dimension Fortress Macross Film Case, Tokyo High Court, 25 September 2003, (Case No. 1107 (ne) of 2003); Goodbye Carol Case, Tokyo District Court, 15 March 2005, Hanrei Jiho No. 1894: 110.
[14] Super Dimension Fortress Macross Film Case, Tokyo High Court, 25 September 2003 (Case No. 1107 (ne) of 2003); Goodbye Carol Case, Tokyo District Court, 15 March 2005, Hanrei Jiho No. 1894: 110.
[15] Yamaguchi-gumi Fifth-Generation Boss Transfer of Power Ceremony Case, Osaka District Court, 25 March 1993, Hanrei Jiho No. 1464: 139.

3. Contents of Copyright

Ryo Shimanami
Professor of Law
Kobe University

Section 1 Creation and Effect of Copyright

1. Copyright arises at the time a work is created without any procedural requirements (the ‘no formalities' principle, Article 17(2)) and initially vests in the author. Copyright differs in this respect from patent rights, utility model rights and design rights; while the creation of all is governed by law, the latter three rights adopt the formality principle, arising only after registration with the Japan Patent Office. Although there is also a system of registration for copyright (Article 77), registration with the Cultural Agency is not a prerequisite for rights to arise, registration is no more than a prerequisite for raising a transfer of rights or similar as a defense against a third party.

Whilst there is a system in the U.S. by which the burden of proof in relation to the valid creation of rights in a copyright infringement suit can be lessened through means such as displaying the © copyright mark on a work, or registration with the U.S. Copyright Office, the Japanese Copyright Act does not incorporate such a system. It follows that, limited to where Japanese copyright is concerned, the displaying of the © mark or the words “No copying allowed without previous permission” is completely meaningless, not only in the obvious sense with respect to the creation of rights, but also in terms of rights infringements.

2. Copyright has the exclusive effect of prohibiting “exploitation” of works by others without authorization. The acts incorporated in “exploitation” of works are generally thought to be limited to the comprehensive list found from Articles 21 through 28 of the Copyright Act . [1] These acts of exploitation of works provided for by the Copyright Act are collectively known as “prescribed acts of exploitation.”

As an illustration, Article 21 provides, “The author shall have the exclusive right to reproduce his work”, which can be read at first glace to mean that the author has the right to himself personally reproduce his work without interference from others. However the effect of copyright is passive at most, limited to aspects prohibiting unauthorized exploitation; copyright does not have active aspects legitimizing the author's exploitation.

3. Copyright is only relative in effect, in that it prohibits unauthorized “copying” by others. In other words, it is necessary for there to have been access and dependence by others in order to establish infringement, and if this access or dependence is lacking there is no infringement, even if the creative expression is, by chance, the same. Copyright differs in this respect from patent or trademark rights, which have absolute effect, so that an infringement is established even if the technology or trademark is used by chance.

Section 2 Prescribed Acts of Exploitation (Types of Infringement)

Subsection I Overview

1. The prescribed acts of exploitation are comprised of the following.

Works

Tangible reproduction: Reproduction (Art. 21)

Presentation: Performance (Art. 22), Screening (Art. 22-2),           Transmission (Art. 23), Recitation (Art. 24),           Exhibition (Art. 25)

Provision: Distribution (Art. 26), Transfer (Art. 26-2), Lending (Art. 26-3)

Derivative works

Creation: Translation, Arrangement, Transformation, Adaptation        (Art. 27)

Exploitation: Arts. 21~26-3(Art. 28)

Prescribed acts of exploitation can firstly be broadly divided into those relating to works and those relating to derivative works.

Turning to acts relating to works, tangible reproduction means the act of embodying a work into a new tangible object, presentation means acts enabling direct access to works and provision means acts enabling indirect access to works by the transfer of possession of tangibles (original productions or copies). Copyright infringement through acts of presentation and provision requires presentation or provision to the public, but infringement by physical reproduction is not so limited.

Prescribed acts of exploitation of derivative works can be divided into acts actually creating derivative works and acts exploiting created derivative works. The creation of derivative works means acts adding new creativity to a work. The copyright protections prescribed under Articles 21 (reproduction) to 26-3 (lending) are given to created derivative works in the same way as to the original work.

Subsection II Reproduction (Article 21)

1. Reproduction means “reproduction in a tangible form by means of printing, photography, reprography, sound or visual recording or otherwise” (Article 2(1)(xv)). The second phrase “by means of printing, photography, reprography, sound or visual recording or otherwise” signifies only that there are no limitations on the technical means of reproduction covered. In other words the means listed, such as printing, are simply illustrative; this provision covers all possible technical means. The same applies to the effect of the provision. It follows that there is no practical benefit in specifying the technical means adopted.

The first phrase “reproduction in a tangible form” is the part of the provision that is in fact meaningful as a prerequisite for establishing reproduction. Dependence and similarity, which are often mentioned as prerequisites for reproduction, are in fact not prerequisites as such, but general requirements for the establishment of copyright infringement, and will not be covered here.

2. Tangible means to be fixed as a tangible object. In other words, this indicates the embodiment of intangible information into a tangible medium printing on paper, sound or visual recording on hard disk or DVD-R. Whilst visible reproduction perceptible to the human eye, such as printing on paper or photography on photographic film is clearly covered, non-visible copies, such as magnetic or electronic recordings on tape or CD-R are also tangible, as they can be read repeatedly using equipment. On the other hand, transitory copies involved in the act of electronically sending digital information over a line, [2] outputs to a computer monitor screen, [3] or the loading of a software program into RAM (random access memory) that necessarily accompanies the use of a computer, [4] where the information is lost when the power supply is shut down, are all not tangible copies, even if the work is embodied and enters into a tangible object, as there is no possibility of repeated future use.

3. Reproduction means that a work is newly presented in a form perceptible to human sight or hearing. Repetition is not required for reproduction. Even acts that occur only once, such as one sheet copied on a photocopier or one instance of writing to a hard disk constitute reproduction. [5] Further, when a pirated work is published in large quantities it is not the overall act of publishing but the individual acts of publishing each volume that equate to reproduction.

Moreover, reproduction can be established even where the dimensions or means of expression differ. For example, the acts of creating a three-dimensional stuffed toy based on a two-dimensional cartoon and making a motion picture based on a novel in written form also constitute reproduction. However, since where there are changes to the dimensions or means of expression the person exploiting the work has often added new creativity, these cases will fall within adaptation (Article 27) rather than reproduction, even where it is a reproduction of the same work.

4. The Copyright Act provides, separately to the general definition of reproduction, to the effect that the following two acts also constitute reproduction; latter phrases of (Article 2(1)(xv)). Specifically, ① sub-item (a) provides that the sound and visual recording of acting performances, broadcasts or wire diffusion of dramatic works (such as scripts) will, while at the same time constituting reproduction of the acting performance or similar, also constitute the reproduction of the said “dramatic work”. Further, ② sub-item (b) provides that the construction of an architectural work according to the plans for the same (blueprints and the like) will, while at the same time constituting reproduction of the plans, also constitute the reproduction of the as-yet incomplete “architectural work.”

There is some discord between the theory that these provisions are fundamental in nature and the theory that they are merely in the nature of confirmation. On considering the matter, the settled view is that it is possible for an exploitation to fall within “reproduction” in tangible form even if the dimensions or means of expression have changed. It follows that it is probable that even if these provisions did not exist, 〈1〉 the visual recording of an acting performance would constitute the reproduction of the script that was embodied in the acting performance, and further 〈2〉 the completion of construction would constitute nothing other than the reproduction of the architectural plans that were embodied in the architectural work. Further, since there is no requirement that the copy embodying the work be completed as a prerequisite for copyright to arise, even if 〈2〉 the construction is incomplete, copyright arises at the time when the blueprints are completed as an intangible construction. Accordingly, the confirmation theory is appropriate in relation to both 〈1〉and 〈2〉 .

Subsection III Presentation of Works (Articles 22-25)

1. Whereas, for reproduction, even cases carried out by one person alone, involving no other person, fall within infringing acts, in presentation of a work to the public through the various kinds of performance (Articles 22-25), the infringement begins when the exploitation occurs “to the public”.

The Copyright Act provides that the public includes “a large number of specific persons” (Article 2(5)). As the settled view is that unspecified persons are included in the public, irrespective of the number of such persons, in the result “the public” indicates all persons other than a small number of specified persons. There is also case law in relation to the lending right that holds that a small number of unspecified persons constitutes “the public.” [6]

Specified and unspecified are differentiated by the presence or absence of personal connections. Even if the students are specified for a particular lesson at a ballroom dancing studio, in cases where the studio owner places no restrictions on eligibility for students or where students change according to the lesson, there is no personal connection between the studio owner and the students and so the students are unspecified. [7] Moreover, since bidders (transferees) for copies in Internet auctions have no personal connection to the offeror (transferor), they are unspecified persons. There is case law in relation to acts of leasing a software program to group companies to the effect that even when the program was provided to group companies, “the lessee (or user) was, in relation to the lessor company, itself the object of sales acts and could not be seen in any sense as having a personal connection (to the lessor company).” The acts constituted lending to the public. [8]

The distinction between small and large numbers in this context is relative and no clear line can be drawn above which the number of persons will be large. The concrete numbers of persons could change according to 〈1〉the nature of the work and 〈2〉the type of act of exploitation. However, since, as is stated above, where the persons are unspecified they will constitute “the public” irrespective of their number, it is only in the case of specified persons that there is significance in their categorization as either a small or a large number. Expressed in the converse, the requirement that there be a large number of persons begins to be satisfied, where the persons are specified, once they can be viewed in the same manner as unspecified persons, in other words, once the strength of their numbers means that their personal connection with the actor is fairly weak.

2. Stage and Musical Performances

Stage and musical performances both constitute the act of performing a work ( cf. Article 2(1)(xvi)). When the object of the performance is a musical work the performance is a musical performance, and performances of other works are stage performances. Such performances are infringements of copyright only where the purpose is that they be directly seen or heard by the public (Article 22). Provided, however, that since the performer (including actors, musicians and singers) himself or herself does not hold copyright (performer's rights are limited to neighboring rights), where a person has seen another's performance and imitated that original performance, it is not the original performer but the author's (including playwrights and scriptwriters) stage or musical performance rights that are infringed.

Since stage performance is a broad term referring to the act of performing works other than music (Article 2(1)(xvi)) it covers not only the performing arts such as theatre and dance but also Japanese art forms such as rakugo (comic storytelling) and manzai (comic dialogues). Further, a musical performance is the act of performing a musical work and includes both musical performances using instruments (in the narrow sense) and musical performances using voices (singing; cf. Article 2(1)(xvi) in parentheses). However since the outcome is the same whether a performance falls within stage performance, musical performance in the narrow sense or vocal performance there is no practical benefit in a strict conclusion as to what category an act falls within. A composite performance such as opera will raise issues of simultaneous infringement of several of the rights bundled within copyright.

Note that stage and musical performances include not only live stage and musical performances but also the playing of audio or audiovisual CD or DVD recordings (excluding acts falling within public transmission or screening) and the communication of the same by telecommunications equipment (excluding acts falling within public transmission; see Article 2(7)). [9]

It is common for there to be, at the same time as and in addition to the subject who actually physically performs the work, a subject who manages and supervises the performer, for example by deciding the program and providing the location and obtains business profits from the same (such as a theatre, concert hall or karaoke studio). There is debate as to whether liability for copyright infringement can be attributed to that kind of subject.

3. Screening Presentation

Screening means to show a work on a projection screen or other material object (first phrase; Article 2(1)(xvii)). Whilst projection is an act reproducing a work, it is not reproduced in tangible form (if the power supply is shut off the work projected is imperceptible) and in that respect differs from reproduction (Article 2(1)(xv)). Screening constitutes copyright infringement only in cases intended to be publicly seen or heard, in other words by the public ( cf. Article 22 in parentheses; Article 22-2)

The type of a work that is the subject of screening rights is irrelevant. Although screening was, in the past, limited to cinematographic works, the revisions of 1999 expanded coverage to all works, so that the projection of works such as photographs or slides is also included.

The “other material objects” onto which works are projected broadly include objects such as television sets and computer monitors. The apparatus used as the means of projection, such as a projector or OHP is irrelevant. Provided, however, that some acts, limited to those acts presenting a publicly transmitted work to the public using receiving apparatus, will fall within a prescribed act of exploitation separate from screening, that of “communication” (Article 23(2)).

4. Public transmission and communication

Transmission means the act of sending information by communications and constitutes copyright infringement only when it is intended for direct reception by the public (Article 23(1); this being specifically referred as “public transmission” cf. Article 2(1)(vii-ii)). Whether the technical means of transmission is wired or wireless is irrelevant.

Public transmission can be divided into broadcasting (Article 2(1)(viii), wire diffusion (Article 2(1)(ix-ii), interactive transmission (Article 2(1)(ix-iv) and other public transmissions.

Types of Public Transmission

Simultaneous
Transmission

Wireless transmission (Art. 2(1)(viii)
Wire diffusion (Art. 2(1)(ix-ii)
Asynchronous
Transmission
Interactive transmission (Art. 2(1)(ix-iv) e.g. Internet websites, BBS, on-demand
Manual transmission (other public transmissions)

Of the types of public transmission it is solely in the case of interactive transmission that acts leading up to and prior to transmission (making available to the public) are also included as a type of infringing act (Article 21(1) in parentheses). Facilitating transmission (Article 2(1)(ix-v)) means, for example, to upload a work onto a server connected to the Internet. However, cases involving fixing on a tangible object such as the act of uploading a work onto a server can be caught by the reproduction right. Further, as with live streaming of professional sports or concerts on the Internet, since it is usual even in cases where fixing on a tangible object is not involved, for these to be received simultaneously by the public, this will, after all, be an infringement of the wire diffusion right.

Communication (Article 23(2)) means the act of receiving publicly transmitted work and presenting it, unaltered, through receiving apparatus such as speakers or television sets. Communication will constitute infringement when it is carried out publicly. However the public communication of works that have been broadcast or diffused by wire will be lawful if carried out on free of charge on a not-for-profit basis (first sentence of Article 38(3)). The author's right is also restricted in cases where ordinary household receiving apparatus is used, including public transmissions other than broadcasts and wire diffusions and even where the communication is fee-based and for profit (second sentence of Article 38(3)). This would, for example, be the act of having customers hear or view radio or television programs in a restaurant using a household radio or television set.

Whilst the act of the audio or visualrecording and presentation of publicly transmitted works is not covered by this provision, the act of recording would infringe the reproduction right and the act of presentation to the public would infringe the stage and musical performance rights, the screening presentation right and the recitation right.

5. Recitation

Recitation means the oral communication of works by reading aloud or other means (Article 2(1)(xviii). However as recitation excludes exploitations falling within “performance”, what is ultimately meant is only cases where a written work is communicated orally in an environment other than theatrical performance. Recitation constitutes a violation of copyright only where carried out to the public (Article 24).

Recitation includes not only live recitations but also the replaying of audio or audiovisual recordings of the same (excluding those falling within public transmissions or screening presentations) and communication using telecommunications equipment (excluding those falling within public transmission) (Article 2(7)). This would, for example, be the replaying of a CD book containing a novel read aloud or a cassette tape containing English conversation practice.

6. Exhibition

Exhibition is to enable visual access to an embodied work without transferring possession of a tangible. It constitutes a violation of copyright under the Copyright Act only in cases where 〈1〉an artistic work or unpublished photograph is involved, 〈2〉 the work exhibited is the original work, and〈3〉 the work is publicly exhibited (Article 25). Artistic works and unpublished photographs are regulated by this provision because they differ from works employing language or motion pictures in that it is the embodied tangible itself that is the object of aesthetic appreciation through the visual sense. However the provisions of Article 45 balance the exhibition right with ownership rights, to the effect that the exhibition right is largely circumscribed.

Whilst the tangibles that embody works incorporate both original works and copies, Article 25 covers only the former. Since the exhibition right conflicts with ownership rights for tangibles and it is possible that large numbers of copies will be made, it is only the creation and transfer of the copies that are covered by rights to prohibit (the reproduction right and the transfer right). Naturally in relation to the original work as well, in the case of photographs, woodblock prints or cast sculptures a number may exist, although there is only one work in the case of paintings. The reason for the restriction of Article 25 to unpublished photographs is the difficulty in differentiating between the original work and copies.

Subsection IV Provision of Works

1. Articles 26 to 26-4 of the Copyright Act provide in relation to acts indirectly permitting access to works by means of changes in possession of copies, referred to as distribution, transfer and lending, all of which are acts of provision. These acts have the fact that each becomes an infringement when it is carried out to the public in common with acts of presentation (noting, however that the distribution of cinematographic works is a special exception in this respect). However acts of presentation differ in regard to the question of whether changes in possession are involved, in that presentation either allows direct access to works or allows indirect access without changes in the possession of copies.

Distribution is an act arising from transfer and lending. Provided, however, that distribution differs from transfer and lending in that 〈1〉 the distribution right covers cinematographic works and the transfer and lending rights cover works other than cinematographic works, 〈2〉 distribution acts are also sometimes treated as an infringement when not carried out to the public, and 〈3〉 there are no express provisions relating to the exhaustion of the distribution right.

In the past it was only the distribution right for cinematographic works that was regulated, however the lending right was instituted in 1984 and the transfer right in 1999, the former in respond to the recording industry and the latter in response to treaty obligations.

2. Distribution means to indirectly permit public access to a work by changes in the possession of copies, irrespective of whether on a fee basis or free-of-charge, and includes both “transfer,” where the owner's authority changes and “lending,” where it does not change (first phrase of Article 2(1)(xix). Under the Copyright Act distribution of cinematographic works ( cf. Article 2(3)) constitutes copyright infringement (Article 26) and, in addition, in relation to works other than cinematographic works also, the knowing distribution of objects made by an infringing act is deemed to be an infringement of various kinds of copyright(Article 113(1)(ii)).

Differences exist between the transfer and lending rights for works other than cinematographic works and the distribution rights for cinematographic works in the following two respects.

Firstly, there are no express provisions on the exhaustion of the distribution right, as with the transfer right.

Secondly, special care has been taken to expand the concept of distribution. In other words, it is not just provision of copies to the public, but even provision to a small number of specified persons, if carried out for the purpose of presentation to the public in future, that falls within distribution (second phrase of Article 2(1)(xix)). This expansion has not been recognized in respect of the transfer right and lending right for works other than cinematographic works. This provision aims to suppress an act preparatory to screening rights infringements through the distribution right.

3. Transfer (Article 26-2) means to provide a work through transferring both the owner's authority and possession of an intangible and under the Copyright Act constitutes infringement only where 〈1〉it is carried out in respect of works other than cinematographic works, by providing 〈2〉 either the original work or copies 〈3〉to the public.

The transfer right is heavily restricted in the following two respects. Firstly, the right does not extend to genuine original works or copies lawfully placed on the market by the copyright holder or a person with a license or the authorization of the copyright holder (Article 26-2(2)(i) and (iii)). The transfer right is an example of express provision for exhaustionof the right. Secondly, the right does not extend to transfers by persons who are not negligent and without knowledge of the infringement of the transfer right (Article 113-2). It follows that even if a person makes a transfer of unlawful copies if the person has the mistaken belief that the copies are lawful and the rights have been exhausted, without negligence, this does not constitute an infringement of the transfer right.

4. Lending (Article 26-3) means a change in possession of tangibles without a change in the owner's authority. The act of providing works by lending of copies of works other than cinematographic works (which are covered by the distribution right rather than the lending right), to the public constitutes an infringement of the lending right. Provided, however, that since the right is restricted in respect of lending that is not-for-profit and without charge (Article 38(4)), borrowing and lending on a personal basis or at a public library is lawful.

Although it was only the distribution right for cinematographic works that was regulated in the past, this article, which covers other works, was created in the 1984 amendments in response to the appearance and growth of record rental stores. Further, whilst there were transitional provisions (Supplementary Provisions Article 4-2) at the time of enactment aimed at protecting the rental book industry to the effect that Article 26-3 did not apply to books and magazines, excluding sheet music, the 2004 revisions abolished that transitional provision and Article 26-3 currently applies to works other than cinematographic works, irrespective of the media.

The question of by what name or method lending takes place is irrelevant (Article 2(8)). It follows that acts that produce the same practical effect as lending, such as a contract that changes ownership temporarily simultaneously with a change in possession, followed by a buy-back (buy-back clause transfer), are included in the lending referred to in this article. Whilst it might be thought that possession does not change when cafes and barber shops lend magazines and the like, so long as the customer does not take the magazine outside (the customer is merely an auxiliary possessor), this is, from the perspective of the Copyright Act , nothing other than the provision of a work through the tangible and must be regarded as lending. Provided, however that since the in-house lending of magazines in cafes and barber shops is not-for-profit and free of charge, the lending right is restricted and the lending is lawful (Article 38(4)). [10]

Subsection V Creation and Exploitation of Derivative Works

1. Creation of Derivative Works (Article 27)

Article 27 of the Copyright Act provides for acts that add creativity to existing works in order to create a new work. Article 27 lists translation, musical arrangement, transformation and adaptation, with dramatization and cinematization as specific examples of adaptation. Of course, adaptation is a fairly broad concept and the main point is that all acts adding new creativity to an existing work are included in Article 27.

The new works that are created by acts regulated by this article are referred to as derivative works (Article 2(1)(xi)). In contrast, the existing works on which the derivative works are based are known as original works. In other words, what Article 27 regulates is the right to create derivative works based on original works. The next article, Article 28, provides for the exploitation of the derivative works created through further reproduction and the like.

Even if creative acts are carried out based on an existing work, where it is no more than the idea of the existing work that is exploited, this will not constitute an infringement of rights under this article. Moreover, cases where the essential features of the original work can no longer be perceived through the new work due to the modification of those essential features will also not constitute an infringement of rights under this article, even if the expression of an existing work is exploited. The prohibition under this article is limited to cases where the essential features of the original work can be perceived through the derivative work.

2. Exploitation of Derivative Works (Article 28)

Article 28 of the Copyright provides for acts exploiting derivative works, including by further reproduction. In other words, the author of an original work has the same types of rights as the author of a derivative work in relation to that derivative work. As a result, authors of original works hold the various rights provided for in Articles 21 to 26-3, including the reproduction right. It follows that the rights of two individuals, the author of the original work and the author of the derivative work arise in coexistence, and a person who intends to exploit a derivative work must obtain the permission of both authors.

In terms of the rights under this article, the physical scope to which the rights of the author of the original work extend is the subject of dispute. In other words, although acts exploiting the part of a work in which the creativity of the original work is perceived are obviously within the scope of this article, the Candy Candy cases

(case 96) has triggered debate over the question of whether acts using other parts of a work can be prohibited by the original author. Although the Supreme Court affirmed this principle, the weight of academic opinion is to the contrary.

[1] There has been debate recently as to whether or not, for the effective protection of copyright, its effect will extend even to acts other than prescribed acts of exploitation, such as acts aiding prescribed acts of exploitation.
[2] The copyright infringement begins when the act falls within public transmission (Article 23(1)) to the public.
[3] The copyright infringement begins when the act falls within screening presentation (Article 11-2) to the public.
[4] It follows that if the program is merely used (executed) this does not constitute infringement of the reproduction right. Note that the act of using a program that is itself an infringing product is deemed a copyright infringement (separate to infringement of the reproduction right) under certain conditions (Article 113(2)).
[5] Although reproduction for personal use does not equate to copyright infringement (body of Article 30(1)) it at least constitutes duplication.
[6] NTT Lease Case, Tokyo District Court, 18 June 2004, Hanrei Jiho 1881: 101.
[7] Nagoya District Court, 7 February 2003, Hanrei Jiho 1840: 126, Nagoya High Court, 4 March 2004, Hanrei Jiho 1870: 123. Leave to file an appeal to the Supreme Court was refused in the same case on 28 September 2004.
[8] See above.
[9] When the Copyright Act now in force was enacted transitional provisions were inserted to the effect that the legitimate playing of recorded music, such as piped BGM recorded music (except in establishments such as music cafes and dance halls) was lawful as an exceptional case (Supplementary Provisions Article 14, Supplementary Provisions to Order for Enforcement Article 3), however these transitional provisions were abolished by the revisions of 1999.
[10] In “ manga cafes” the in-house lending out of manga comics is the main objective of customers in coming to the café and it is thought that a lending right infringement is established on the basis that the lending is either for profit or fee-based, however the matter is yet unclear in practice. The current situation is that the industry body (Japan Complex Café Association) pays consideration to the rights management body ( Rental Rights Administration Center for Publications).

4. Moral Rights

1 Introduction
1 Constitution of author's rights under the Copyright Act of Japan

The author enjoys author's rights (Sec. 17 Copyright Act (hereinafter abbreviated to “CA”)). The author's rights are comprised of moral rights and copyright ( ibid .). Of these rights, while the copyright being a property right is transferable (Sec. 61(1) CA), the moral rights of the author shall be exclusively personal to him and inalienable (Sec. 59 CA). Thus, the Copyright Law of Japan is based upon a definite dualism. [1]

“Author's moral rights” constitute a collective term for the three rights (r ight of making the work public, right of determining the indication of the author's name and right of preserving the integrity) enumerated in Subsection 2, Section 3, Chapter 2 of CA (Sec. 18 ff.).

“Copyright” is a collective term for many rights enumerated in Subsection 3, Section 3, Chapter 2 of CA (Sec. 21 ff.) (e.g. right of reproduction, right of public transmission and right of performance (Sec. 17(1) CA)). By reason of this circumstance, copyright is dubbed as a "bundle of branched rights". [2]

2 Legal nature of author's moral rights [3]

Over the legal nature of the author's moral rights, there arose a controversy in the 1970s among Japanese jurists specializing in the author's rights on the relationship between so-called "general personal rights" ( Allgemeines Persönlichkeitsrecht ) and the author's moral rights. Thus, while some advocated a "theory of inseparability" according to which the latter was one of the individual forms in which the former manifested themselves, [4] others adhered to a "theory of separability", looking upon the latter as separate and independent rights with emphasis on differences between the two types of rights in object, ascription and other respects. [5] This controversy in Japan can find its origin in arguments in Germany , [6] though the Copyright Act of Japan, unlike its German counterpart, favors dualism seems to be somewhat more consonant with the separatist theory. [7]

3 Tradability of author's moral rights

As already noted, it is prescribed that the moral rights of the author are exclusively personal to him and inalienable (Sec. 59 CA). There is no provision that any such rights can be waived. Therefore, even after an author has transfered his copyright (property right) to another person who is to exploit that said right, the author's moral rights remain with the author. Then, the exploiting person, in spite of the authority given to him to exploit the work involved, may be prevented from an undisturbed exploitation of the copyright by the moral rights held by the author. For this reason, in not a few actual copyright contracts, there is a proviso specifically forbidding the exercise of the author's moral rights. This means that the author pledges in advance, when he licenses the exploitation of his work, that he will not exercise his moral rights with respect to a licensed exploitation.

It has to be noted, though, that there is a controversy over the validity of the specific proviso for the non-exercise of the author's moral rights. [8] The majority view seems to be that (at least) a comprehensive proviso for the non-exercise is against public order and good morals (Sec. 90 Civil Code of Japan) and is therefore invalid. [9] Against this view, some expressly affirm the validity of a proviso for the non-exercise of the author's moral rights, [10] and others even approve of a waiver of such rights. [11] This issue deserves further discussion. [12]

2 Author's Moral Rights

I will now discuss the three rights which constitute the author's moral rights.

1 Right of making the work public

(a) Details

CA provides: "The author shall have the rights to offer to and to make available to the public his work which has not yet been made public (including a work which has been made public without his consent; …)" (Sec. 18(1) CA). Thus, the right of making the work public (hereinafter abbreviated to "the right of divulgation") is the right of the author to determine whether or not to make public any of his unpublished work. The right protects the author's moral interest as to making his work public. Therefore, if for instance a novel which the author intended to be kept unpublished all his life is published by a third party without authorization, this act will constitute an infringement on the author's right of divulgation (apart from the infringement of his copyright). Since this also applies to any secondary work derived from the original work whose publication is forbidden (the latter part of the same provision), the author can exercise his right of making the work public on any secondary work (e.g. a film adapted from his unpublished novel) derived from the unpublished work.

The right of divulgation covers only those works which have "not yet been made public" (Sec. 18(1) CA). CA defines a work "made public" in the following wording: "A work has been 'made public' when it has been published, or when it has been made available to the public, by a person who has the rights mentioned in Sections 22 to 25 [the right of presentation, right of performance, right of public transmission, right of recitation or right of exhibition] or with the authorization of such person, by means of presentation, performance, public transmission, recitation or exhibition (Sec. 4(1) CA ). [13] Regarding the "publishing", CA provides: " A work has been 'published' when copies of the work have been reproduced and distributed by a person who has the right mentioned in Section 21 [the right of reproduction] or with the authorization of such person or by a person in favor of whom the right of publication mentioned in Section 79 has been established, in such a sufficient quantity that satisfies the reasonable requirements of the public with regard to the nature of the work … " (Sec. 3(1) CA). [14]

Even though a work was made public by the copyright owner concerned or some other party, if it was made public without the consent of its author, the author can claim the right of making it public (the parenthesized part of Sec. 18(1) CA). However, in certain cases in which the author's consent is presumed or fictitiously deemed to have been given, he can no longer claim his right of divulgation (See below (b)).

(b) Limitations

The right of divulgation is subject to certain limitations, and it is provided that none of the following cases constitutes an infringement on the right of divulgation.

First, where an author undertakes any of the following actions, he is presumed to have consented to making available or offering to the public his work to a certain extent (Sec. 18(2) CA). Thus, where an author transferred his copyright in a work, he is presumed to have consented to making available or offering to the public the work through the exercise of the transferred copyright ( ibid . (i)). Or, where an author transferred the original of an artistic or photographic work which has not been made public, the author is presumed to have consented to making available to the public the work by exhibiting its original ( ibid . (ii)). Further, where the copyright in a cinematographic work has come to belong to the maker thereof in accordance with the provision of Section 29 of CA, the author is presumed to have consented to making available or offering to the public the work by the exercise of the transferred copyright ( ibid . (iii)). However, since these are presumptive provisions, if it is otherwise provided for between the parties concerned, the author can still claim his right of divulgation.

Second, where an author has offered a work to governmental organizations (Sec. 18(3)(i) CA), independent administrative organs, etc. ( ibid . (ii)) or local public entities ( ibid . (iii)) and has made no declaration of his non-consent to its disclosure by the time of the decision to disclose the same, he is deemed to have had consented to its disclosure under the Government Organizations Information Disclosure Law or the like ( ibid ., introductory clause).

Third, it is provided that, in certain cases where public interest is perceived to necessitate the disclosure or in like cases, where a work not yet made public is disclosed by the head of a governmental organization, an independent administrative organ or the like, or an organ of a local public entity (1) in the performance of his or its duty (offering or making available to the public of a work not yet made public in which information whose disclosure is considered necessary for the purpose of protecting human life, health, livelihood or property is recorded), (2) in his or its discretion (offering or making available to the public of a work not yet made public whose disclosure is perceived in the judgment of the administrative organ concerned to be specifically necessary for public interest) or (3) in connection with the disclosure of information pertaining to the performance by any civil servant of his official functions, unauthorized disclosure does not constitute an infringement on the author's right of divulgation (Sec. 18(4) CA).

2 Right of determining the indication of the author's name

(a) Details

CA provides: " The author shall have the right to determine whether his true name or pseudonym should be indicated or not, as the name of the author, on the original of his work or when his work is offered to or made available to the public" (Sec. 19(1) CA). Thus, the right of determining the indication of the author's name (hereinafter abbreviated to "the right of paternity") is the right of the author to determine whether or not to indicate his name on any of his works and, if it is to be indicated, which name it should be. This right protects the author's personal interest regarding the indication of his name. Therefore, for instance if a third party makes public any of the author's works without indicating his name in spite of the author's desire to indicate his true name, that party is infringing on the author's right of paternity. As this protection similarly applies to the indication of the author's name on a secondary work derived from his original work (the latter part of the same paragraph), the author of the original work can exercise his right of paternity when a secondary work derived from his original work (e.g. a film adapted from his novel) is to be offered or made available to the public.

When the author's name is to be indicated, it should absolutely be "indicated as the author's name". Therefore, if the author's name is anyhow indicated in form but not "indicated as the author's name" (e.g. he is identified merely as a member of the production staff), his right of paternity is construed to be infringed upon. [15]

As the wording of Law refers to indication " on the original of his work or when his work is offered to or made available to the public", the right of paternity cannot be exercised when the work (or a secondary work deriving therefrom) itself is not made available or offered to the public. For instance, where the title of a work is mentioned in a magazine, even if the name of its author is indicated incorrectly, it will not be construed as an infringement on the author's right of paternity. [16]

(b) Limitations

The right of paternity is subject to certain limitations, and it is provided that none of the following cases constitutes an infringement on the right of paternity.

First, a person exploiting a work of the author may indicate the name of the author in the same manner as was previously adopted by the author in the absence of any declaration of intent from the author to the contrary ( ibid . (2)). Therefore, a work already made public in the author's pseudonym (pen name) can be made available or offered to the public with the indication of that pseudonym without infringing on the author's right of paternity.

Second, it is permissible to omit the name of the author where it is found that there is no risk of damage upon the interests of the author in his claim to authorship in the light of the purpose and the manner of exploiting his work and in so far as such omission is compatible with fair practice ( ibid . (3)). For instance, where many works of music are played in a bar as background music, omission of the indication of the composer's name for each work is not construed as an infringement on the right of paternity.

Third, where the head of a government organization or the like is to offer or make available a work to the public under the Government Organizations Information Disclosure Law or the like, he can indicate the author's name with the work in the manner in which the author has had already previously indicated in the said work or omit the indication of the author's name from the work without infringing on the right of paternity ( ibid . (4)).

3 Right of preserving the integrity

(a) Details

CA provides: " The author shall have the right to preserve the integrity of his work and its title against any distortion, mutilation or other modification against his will" (Sec. 20(1) CA). Thus, the right of preserving the integrity (hereinafter abbreviated to "the right of integrity") authorizes the author to object to any modification done to his work. This right protects the author's personal interest regarding the integrity of his work. Therefore, unauthorized modification by a publisher to a manuscript written by a novelist would constitute an infringement on the author's right of integrity. [17] There are many judicial precedents on alleged infringements on the right of integrity. [18]

As the wording of Law is "against any modification … against his will", even if the modification enhances the value of the work, it can still be construed as an infringement on the author's right of integrity. In this respect, the right of integrity under the Copyright Act of Japan is beyond the level of protection set forth in Article 6 bis of the Berne Convention. Article 6 bis of the Berne Convention provides: " Independently of the author's economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honor or reputation". It is the commonly accepted interpretation that the "honor or reputation requirement", namely the mention of "would be prejudicial to his honor or reputation", covers any distortion, mutilation or other modification of, or other derogatory action in relation to, the work. [19] The absence of the “honor or reputation” requirement in the Copyright Act of Japan, in contrast to the Berne Convention, means that any such distortion or the like can constitute an infringement on the author's right of integrity even if it is not prejudicial to the honor or reputation of the author. In this sense, the provision for the right of integrity under the Copyright Act of Japan is considered to be a " Berne plus", surpassing the level of protection found under Article 6 bis of the Berne Convention. [20]

(b) Limitations

The right of integrity is subject to certain limitations, and it is provided that none of the following cases constitutes an infringement on the right of integrity (Sec. 20(2)). The paragraph comprises three individual provisions and one general clause.

First, following the application of provisions to limit co pyright, change of ideographs or words or other modifications deemed unavoidable for the purpose of school education in the case of the exploitation of works in textbooks or the like or in the broadcast of school education programs does not constitute an infringement on the right of integrity ( ibid . (i)). For instance, when a novel is to be included in an elementary school textbook, replacement of difficult ideographs with simpler ones does not infringe on the right of integrity of the novel's author.

Second, a modification of an architectural work by means of extension, rebuilding, repairing or remodeling does not constitute an infringement on the right of integrity ( ibid . (ii)). For instance, modifying a superannuated building for the purpose of repair would not constitute an infringement on the right of integrity. [21]

Third, a modification which is necessary for debugging or updating a computer program does not constitute an infringement on the right of integrity ( ibid . (iii)).

Fourth, a modification which is deemed unavoidable in the light of the nature of a work as well as the purpose and the manner of exploitation does not constitute an infringement on the right of integrity ( ibid . (iv)). This provision is intended to supplement the foregoing individual provisions to cover what they cannot address. For instance, failure to perfectly reproduce colors in publishing a painting or to perfectly perform a work of music on account of the immaturity of the performer's skill does not constitute an infringement on the right of integrity. [22]

3 Acts Deemed to Infringe on Author's Moral Rights [23]

1 Under statutes

"An act of exploitation of a work in a manner prejudicial to the honor or reputation of the author shall be considered to constitute an infringement upon his moral rights" (Sec. 113(5) CA [24] ). Therefore, any act involving no modification to a work, and would otherwise not infringe on the right of integrity of its author but is perceived as "an act of exploitation of a work in a manner prejudicial to the honor or reputation of the author", the act will be deemed to infringe on his moral rights. For instance, if an artistic nude photograph is reproduced for as a billboard for a nude show theater, or a very solemn work of religious music is used as background music in a sex establishment, the pertinent author's moral rights may be deemed to have been infringed upon.

The purpose of the legislation is to prevent exploitation of a work irrelevant to the creative intention of its author and consequently causing the public to entertain doubts about the creative intention of the author or a work from being exploited in such a way as would significantly depreciate the artistic values expressed within the work. [25]

"An act of exploitation of a work in a manner prejudicial to the honor or reputation of the author" in the context of this paragraph is construed as an act which is perceived to involve a fear of becoming socially prejudicial to the honor or reputation of the author. [26] Therefore, it is construed to not cover the author's subjective sense of honor. [27]

2 In relation to Berne Convention

Section 113(5) of CA derives from the phrase "other derogatory action in relation to, the said work" in Article 6 bis of the Berne Convention. [28] In this regard, The Copyright Act of Japan currently in effect addresses the issue of the author's right against "other derogatory action" by considering those actions to be deemed infringement (Sec. 113 CA) instead of including the same within the coverage of the author's moral rights per se (Secs. 18-20 CA) (in a dual structure, as it were). [29]

IV Posthumous Protection of Author's Personal Interests

While a definite duration is prescribed for the protection of copyright (Sec. 51 ff. CA), there is no such duration prescribed for the author's moral rights. This comes from the understanding that the author's moral rights are set to "be exclusively personal to him" (Sec. 59 CA), however, they are understood to expire upon the death of the author concerned.

However, it is also prescribed that, even after the author of the work ceases to exist (dies if the author is a natural person or is liquidated if the author is a juridical entity), no person who offers or makes available the author's work to the public "may commit any act which would be prejudicial to the moral rights of the author as if he were alive" (Sec. 60 CA). [30]

Against those who commit or are likely to commit such an act, member of the author's bereaved family (including the surviving spouse, children, parents, grandchildren, grandparents, brothers and sisters of the deceased author) may make a demand for the cessation or prevention of the prejudicial act (Sec. 116(1) CA). The author may also appoint through a will, a person who can make such a demand in behalf of the bereaved family ( ibid . (3)). [31] At any rate, after the death of the bereaved family (or the appointed person), nobody can make such a demand any longer. However, since an act in violation of Section 60 of the Copyright Act is punishable as a criminal offense (Sec. 120 CA), to some extent, the deceased author's personal interest can still be secured even in the absence of his bereaved family.

It is also provided, though, that "such act is permitted if it is deemed not to be against the will of the author in the light of the nature and extent of the act as well as the changes in the social situation and other conditions" (proviso to Sec. 60 CA). For instance, if the alteration of the terminology to keep up with changes of the times or the disclosure of a work in response to changes in socially accepted values is considered no longer prejudicial to the intent of the pertinent author, such acts will be permissible.

[1] Even in Japan, however, a minority view taking note of the close links between copyright and author's moral rights developed an interpretation of the generation, extinction and transfer of the rights based on monism as in the German Copyright Law (see Masao Handa , Chosakuken no ichigenteki kôsei ni tsuite (On the monistic constitution of author's rights), Chosakuken-hô no Kenkyû, Tokyo 1971(first published in 1964), 1. This position seems to have been structured by Prof. Handa who, as a graduated student, found a "heavenly revelation" in Eugen Ulmer , Urheber und Verlagsrecht, Berlin 1951 (see M.Handa , Saishû kôgi "Mimpô to Chosakuken-hô no hazama ni ikite – watakushi no rireki" (Final lecture "Living in the valley between the Civil Code and the Copyright Law – my personal history), 45-4 Aoyama Hôgaku Ronshû 11 [2004]).
[2] Thus, the Copyright Act of Japan has adapted itself to the social changes and technological development by adding and adjusting branched rights, but there also is a proposal (for simplification of author's rights), based on a view that such stopgap measures have their own limits, to reorganize author's rights into a comprehensive system (see Kaoru Okamoto , Chosakuken hogo no kokusaiteki harmonization to Asia shokoku no ugoki (International harmonization of copyright protection and developments in Asian countries), 24 Chosakuken Kenkyû 129 [1998]).
[3] See Tatsuhiro Ueno , Chosakubutsu no kaihen to chosakusha-jinkakuken wo meguru ichi-kôsatsu – doitsu chosakuken-hô ni okeru "rieki kôryô" karano shisa (An inquiry into modifications of a work and author's moral rights – suggestions from "balance of interests" (Interessenabwägung) under the German Copyright Law), 120-6 Minshôhô Zasshi 956 ff. [1999].
[4] See Hiroshi Saitô , Jinkakuken-hô no Kenkyû (Study on Personal Rights Law), Tokyo 1979, 231.
[5] See Handa , Chosakuken no ichigenteki kôsei ni tsuite, supra note 1 , at 36 ff.
[6] See e.g. Hiroshi Saitô , Doitsu-hô ni okeru chosakusha-jinkakuken to ippanteki-jinkakuken (Author's moral rights and general personal rights under German law, 2 Chosakuken Kenkyû 71 [1969]; Gerda Krüger-Nieland , Das Urheberpersönlichkeitsrecht, eine besondere Erscheinungsform des allgemeinen Persönlichkeitsrecht?, Hauss-FS, Karlsruhe 1978, S.215ff.
[7] See Ueno , supra note 3 , 120-6 Minshôhô Zasshi 956.
[8] For this reason, there was a proposal from the legislative point of view to make its validity definite (see Institute of Intellectual Property, Exposure '94 – Multimedia wo meguru Aratana Chitekizaisan Rule no Teish ô (Exposure '94 – A Proposal to Establish New Rules on Intellectual Property in Connection with Multimedia, Tokyo 1994, 47).
[9] See e.g. Hiroshi Saitô , Jôhô no digital-ka to chosakusha-jinkakuken (Digitalization of information and author's moral rights), Mimpôgaku to Hikakuhôgaku no Shosô, 167 [1997].
[10] See e.g. Yoshiyuki Tamura , Chosakuken-hô Gaisetsu (Outline of the Copyright Law), 2 nd ed. Tokyo 2001, 411.
[11] See Tamura , supra note 10 , at 412.
[12] In this respect, discussions in the context of the German law gave us useful hints (see Tatsuhiro Ueno , Chosakusha-jinkakuken ni kansuru keiyaku wo meguru ichi-kôsatsu – dôitsusei-hojiken no fukôshitokuyaku wo chûshin toshite (An inquiry into contracts regarding author's moral rights – focusing on special proviso on non-exercise of the right of integrity), Dainikai Chosakuken/Chosaku-rinsetsuken Rombun-shû, Tokyo 1999, 22), as Prof. Gerhard Schricker, discussed the right of integrity and the validity of consent in his paper released in 1985 ( G.Schricker , Die Einwilligung des Urhebers in entstellende Änderungen des Werkes, Hubmann-FS, Frankfurt am Main 1985, S.409), indicated an orientation of "impermissible comprehensive waiver and permissible individual consent (unzulässiger pauschale Verzicht und zulässige Einwilligung im Einzelfall)" conditional on "concreteness (Konkretisierung) and precision (Präzision)", and thereby significantly influenced later discussions on the interpretation. Further in 1997, this concept was adopted in an expert opinion presented in connection with a revision of the Copyright Act ( Gerhart Schricker (hrsg.) , Urheberrecht auf dem Weg zur Informationsgesellschaft, Baden-Baden 1997, S.93,100,279), and found its way into the "Bill for Strengthening the Positions of Authors and Performers (Vorschlag für einen Entwurf eines Gesetzes zur Stärkung der vertraglichen Stellung von Urhebern und ausübenden Künstlern)" of 2000 (though the said part of the proposed revision was eventually deleted from the final amendment (of 22 March 2002)). We in Japan find much to learn from such discussions).
[13] Regarding public transmission, a work is deemed to have been made public when it is put in such a state that it can be made transmittable (i.e. uploaded) ( ibid . (2)).
[14] Tokyo District Court, 29 February 2000, 1715 Hanrei Jihô 76 –“Hidetoshi Nakata": A poem written by a soccer player (Hidetoshi Nakata) in his secondary school days and incorporated into a collection of students' compositions at school was later published by a third party in a book without authorization. The court decided that "since the poem at issue can be regarded as having been reproduced into a sufficient number of copies that satisfies the requirement of 300 or more copies and was previously distributed thereto, it can be deemed to have been made public. Also, the plaintiff who is the author of the poem at issue had consented to its inclusion in the collection of the students' compositions, he can be deemed to have consented to its being made public in the aforementioned form", and is thereby denied the alleged infringement on the right of divulgation.
[15] Tokyo District Court, 25 April 2000 –“Chigiregumo”: A novel derived from a film script written by the plaintiff was written by the defendant. The court decided that "The plaintiff's name was indicated merely as a member of the cinematographic staff, but was found to be the original author of the novel", and thereby affirmed the alleged infringement on the right of divulgation).
[16] See Tamura , supra note 10 , at 428.
[17] Tokyo High Court, 19 December 1991, 1422 Hanrei Jihô 123 –“Hôsei University prize-competition thesis”: When a thesis written by a student was published in the university's transactions, some expressive features were altered by the university (e.g. phonetic letters following ideographs were changed, punctuation marks deleted, centered periods replaced with commas, and paragraph changes omitted). The court affirmed that these alterations constituted an infringement on the right of integrity.
[18] E.g. Supreme Court, 13 February 2001, 55-1 Minshû 87 –“Tokimeki Memorial” : The case concerned marketing of a memory card which enabled parameters expressing the character of the hero in a love simulation game to be altered. The court decided that the use of the memory card would result in the development of the story of the game program beyond its planned scope and cause an alteration to the story, therefore the use of the memory card invited an alteration of the game software at issue and accordingly constituted an infringement on the right of integrity). See Tatsuhiro Ueno , Memory card no shiyô to chosakusha no dôitsusei-hojiken shingai tô (Use of a memory card and infringement on the author's right of integrity), 125-6 Minshôhô Zasshi 739 [2002].
[19] Against this, there is a minority view that the author can object to "distortion or mutilation", even if not prejudicial to his honor or reputation. The view is based on the understanding that the addition of "other derogatory action" on the occasion of the revision at the Brussels conference (in 1948) resulted in a change which focuses the language referring to the honor or reputation requirement solely on the "other derogatory action" ( Bappert-Wagner , Internationales Urheberrecht: Kommentar, München 1956, S.87), and there is also a view in support of this opinion in Japan (see Prof. Handa's comment in 23 Chosakuken Kenkyû 56). On this argument, see Ueno supra note 3 , 120-4/5 Minshôhô Zasshi 758, 760 n.29.
[20] Moriyuki Kato , who was involved in drafting the Copyright Act of Japan, made a statement to the same effect (see Kato's comment in 23 Chosakuken Kenkyû 52 [1997]).
[21] Tokyo District Court, 11 June 2003, 1840 Hanrei Jihô 106 –“Noguchi Room”: Keiô University, in connection with the planned construction of a new building to house its law school, intended to execute a project to dismantle an existing building in the campus and relocate it to the third floor of the newbuilding. Against this plan, the Isamu Noguchi Foundation, claiming itself to be the successor of all rights regarding the works of (the late) sculptor Isamu Noguchi, who had co-designed the existing building, demanded a suspension of the project on the ground of his right of integrity. The court decided that "since the project at issue constitutes an extension, rebuilding or the like of a building under Section 20(2)(ii) of the Copyright Act, it does not infringe on the author's moral right (right of integrity) of Isamu Noguchi).
[22] However, the commonly accepted theory and judicial precedents have thoroughly frozen Section 20(2)(iv) as what "should be interpreted and implemented with extreme strictness" (see e.g. Moriyuki Kato , Chosakuken-hô Chikujô Kôgi (Commentary on the Copyright Act), 4 th revised ed., Tokyo 2003, 173; Hiroshi Saitô , Gaisetsu Chosakuken-hô (Outline of the Copyright Law), 3 rd ed., Tokyo 1994, 106). According to this view, the provision of Section 20(2)(iv) of the Copyright Act is an "exception" to the fundamental principle of the law that "the primary purpose is to protect authors" and accordingly should be interpreted with thorough strictness. As a matter of fact, until 1993 there had been no judicial decision whatsoever denying any alleged infringement by applying this subparagraph. Since it nevertheless was no more justifiable to give an interpretation that every modification infringed on the right of integrity, the commonly accepted theory and judicial precedents denying any alleged infringement have done so on the basis of ambiguous legal construction of other provisions other than that of Section 20(2)(iv). However, there seems to be no such relationship between the right of the author and that of any person exploiting the author's work that one is predominant over the other a priori. Therefore, one may reasonably assume that Section 20 of the Copyright Act is a provision intended as an adjustment between the two parties. Actually, more recent judicial decisions are rapidly inclined to make use of Section 20(2)(iv) (Tokyo High Court, 1 December 1993 –“Shokun!”; Tokyo High Court, 13 July 1998, 30-3 Chitekisaishû 427 –“Sweet Home ”; Tokyo District Court, 30 October 1998, 1674 Hanrei Jihô 132 –“Blood type and personal character"; Tokyo High Court, 25 April 2000, 1724 Hanrei Jihô 124 –“Datsu-Gômanizumu Sengen”. There is much to learn from the "balance of interests" (Interessenabwägung) process under the German Copyright Law. Regarding the foregoing, see Ueno , supra note 3 , 120-4/5 Minshôhô Zasshi 748 and 120-6 Minshôhô Zasshi 925.
[23] See Tatsuhiro Ueno , Chosakubutsu no ronpyô ni okeru meiyo-kison to chosakusha-jinkakuken (Defamation by criticism of a work and moral right), 54-1 Chizai Kanri 83 ff. [2004].
[24] Section 113(5) of the Copyright Act currently in effect at first was Section 113(2), by the amendment in 1985 the provision was shifted to Section 113(3), followed by the amendment in 1999 which shifts it to Section 113(5).
[25] See Kato supra note 22 , at 653.
[26] See Kato supra note 22 , at 654.
[27] Regarding the interpretation of the wording "honor or reputation" in Section 36 bis of the former Copyright Act (corresponding to Section 115 of the Copyright Act currently in effect), Supreme Court, 30 May 1986, 40-4 Minshû 725 –“Parody montage” , quoting a precedent under Section 723 of the Civil Code (Supreme Court, 18 December 1970, 24-13 Minshû 2151), declared that it "refers to the objective evaluation by society of an author with regard to his personal values including character, virtue, reputation and trustworthiness, namely his social reputation and honor".
[28] This part did not exist when Article 6 bis was added to the Berne Convention at the Rome Revision Conference for amendment (in 1928), and was added at the Brussels Revision Conference (in 1948).
[29] In incorporating the right against "other derogatory action" under the Berne Convention into the domestic law, it could have been included as part of the right of integrity. As a matter of fact, this is what we find in the German Copyright Act (1965) and, even in Japan , the first pertinent bill envisaged the direct inclusion of "other derogatory action" in the coverage of the right of integrity (see Section 12 of the 1966 bill).
[30] Tokyo High Court, 23 May 2000, 1725 Hanrei Jih ô 165 –“Yukio Mishima's letter” : The defendant, who was a writer, quoted an undisclosed letter addressed to him from the late Yukio Mishima, another novelist, without authorization in writing a novel taking its theme from his own homosexual relationship with Mishima. The court decided that it was an act which would have infringed, if Yukio Mishima had still been living, on his right of divulgation, and approved a claim for injunction, compensation for damage, etc. by his bereaved family (eldest daughter and eldest son).
[31] Tokyo District Court, 11 June 2003 –“Noguchi Room”: The court rejected the claim on the ground that the Isamu Noguchi Foundation had not been "appointed" in the sense of Section 116(3) of the Copyright Act of Japan.

5. Exploitation of Works

Ryu Kojima
Associate Professor of Law
Kyushu University

1. Licensing

Article 63(1) of the Copyright Act provides “The copyright owner may grant another person authorization to exploit the work.” As copyright is exclusive in nature, with a concomitant right to demand injunctive relief to third party's infringement, a license can generally be understood as a contract to the effect that the copyright owner will not exercise the copyright.

Licenses are can be either exclusive or non-exclusive licenses. An exclusive license is a contract to the effect that Copyright Owner A assumes an obligation not to grant a license to anyone other than Licensee B. Where Copyright Owner A grants a license to Third Party C in breach of that contract, A is liable to Licensee B. Note that in this case Third Party C receives A's lawful authorization, and this does not constitute a copyright infringement. A non-exclusive license is a contract to the effect that Copyright Owner A may grant licenses to persons other than Licensee B.

There is no system of registration in relation to licenses allowing licensees to assert their own status against third parties (this is problematic from the perspective of protection of licensees; the lack of such a system is an issue for future discussion). In other words, in order to fulfill the prerequisites for assertion against third parties, copyright must be transferred (including partial transfers; Article 77 Copyright Act ) and the same must be registered. Given this, the merit of establishing a system of registration for licenses is apparent from the perspective of protecting licensees from eventualities such as the bankruptcy of the copyright owner or the transfer of the copyright owner's status. The Agency for Cultural Affairs and other bodies are considering the matter. [1]

It is possible to stipulate the authorized manner and conditions of exploitation when granting a license (Article 63(2) Copyright Act ). The issue in this context is the legal position in cases where a licensee has acted in breach of such manner and conditions of exploitation. Namely, where a licensee has breached the “authorized manner and conditions of exploitation”, the question is (1) whether the matters prescribed by the license are regarded in their entirety as the “authorized manner and conditions of exploitation” so that the breach of the same is deemed to be an infringement of copyright, or (2) whether the liability is no more than simple liability for non-performance of an obligation.

The basis for this determination has not been definitively established, and in the end, a decision must be made as to whether or not the said breach of contract touches on the essence of the bundle of rights comprising copyright. In this regard the Copyright Act contains a number of special provisions delineating the scope of licenses. To be specific, Article 63(4) states, “Unless otherwise stipulated in a contract, the authorization under Article 63 (1) to broadcast a work or diffuse a work by wire shall not include authorization to make sound or visual recordings of the work.” Further, Article 63(5) provides, “The provisions of Article 23(1) shall not apply to the process of making a work transmittable, either repeatedly within the scope of the authorized manner and conditions (excluding those related to the frequency with which a work is to be made transmittable or the server to be used for making a work transmittable), or using another server, carried out by a person who has obtained authorization under Article 63 (1) in relation to making a work transmittable.”

The right to exploit a work may not be transferred without the consent of the author (Article 63(3) Copyright Act ). In respect of information, it is logical that limitless exploitation is possible, since its consumption is not exclusive in nature. Accordingly, the rationale for the fact that the right to exploit may not be transferred to others without the consent of the author is that the greatest interest of authors lies in by what kind of economically influential licensees, and under what conditions their works will be exploited.

Whilst it is fundamental that direct negotiations be carried out between the copyright owner and the licensee when a license is granted, a variety of collective management organizations have been established in order to promote more efficient licensing. These are exemplified in the music field by the Japanese Society for Rights of Authors, Composers and Publishers (JASRAC) and in the visual imagery field by the Japan Video Software Association (JVA).


2. Transfers of Copyright

Copyright is a property right and transferable (Article 61(1) Copyright Act ). In contrast, an author's moral rights belong exclusively to the author in person and are not subject to transfer or succession (Article 59). It follows that there is ample possibility of situations arising where ownership of copyright and the author's moral rights are split between several subjects.

It is possible to transfer either all or part of the bundle of rights incorporated in copyright (Article 61(1)). Where rights are transferred in part, the issue arises of what part of the rights has been transferred. Whilst it is acceptable to divide rights according to the nature of the bundled right (transferring the right of reproduction to A, the right of distribution to B, etc.) or to impose restrictions in terms of location (transferring the right of reproduction in Tokyo to A, the right to lend in Osaka to B, etc.), partial transfers of unrestricted subdivided rights are not always valid (refer Popeye Belt Case).

There are further issues relating to transfers for limited periods, which can be regarded as partial transfers subdivided by time. Irrespective of what arguments are employed, the copyright is considered to revert to the original rights owner on the expiry of the term.

Note that under Japan 's Copyright Act there are no means by which a third party can obtain rights as against the world at large in relation to exploitation of a work, other than the transfer of copyright or the establishment of publication rights. Partial transfers can be said to fulfill a supplementary function in this respect. Debate is already in progress on methods apart from these for creating rights as against the world at large, with attention focused on the course to be taken by future enactments or amendments, whether to set up a system of requirements for asserting licenses against the world at large (such as registration), or to create a right of exclusive exploitation.

Article 61(2) is a noteworthy provision on the transfer of copyright. According to this provision, if the rights stipulated in Article 27 (rights of adaptation) or Article 28 (rights of the original author in the exploitation of a derivative work) are not particularly specified as the object of a contract for the transfer of copyright, these rights are presumed to be reserved to the transferor. It follows that where a transfer contract including these rights is entered into, it will not suffice to use the words “transfer all rights” and express mention must be made of the fact that the rights under Articles 27 and 28 of the Copyright Act are included. Although doubts have been raised as to the reasonableness of requiring this specification, at the present time it is desirable to take the pre-emptive step of stating the matter in the interests of contractual clarity and prevention of dispute settlement.

3. Contracts Establishing Right of Publication

Returning to the example given above in the paragraph on licensing, let us ask what kinds of claims can be made by Licensee B against Copyright Owner A and Third Party C where, despite the fact that Copyright Owner A has granted an exclusive license to Licensee B, Copyright Owner A grants a license to Third Party C?

Whilst Licensee B can pursue Copyright Owner A's liability for default pursuant to breach of contract, it is difficult to find a basis for demanding injunctive relief against Third Party C. There is a method in such a situation allowing Licensee B to obtain more effective legal relief, which is for B to have Copyright Owner A establish publication rights (Articles 79 ff Copyright Act ). The most significant difference between publication licenses and contracts to establish the right of publication are that registration of the latter allows the same to be asserted against the world at large (Article 88(1)(i) and (ii)).

4. Contracts in Writing

Copyright contracts should be in written form in order to avoid subsequent disputes. However there is no requirement in Japan for copyright contracts to be in writing. Many other nations have adopted legislation under which copyright contracts must be in written form and the appropriateness of the Japanese legislation is to be argued.

An examination of general contract law in countries such as the United States and France show many instances of encouragement for contracts to be reduced to writing (such as the principles excluding oral evidence when interpreting contracts under US law; the parol evidence rule and the extrinsic evidence rule). This issue of reducing contracts to writing is closely intertwined with the general principles of contract law and not necessarily a specific problem of copyright law.

Japanese law on this point does not require that contracts be in writing as a general principle of contract law and moreover, there are few instances where the same is encouraged. In other words, the interpretation of contracts relies on judicial findings of fact ( freie Beweisführung ; Article 247 Code of Civil Procedure ) and unlike many other nations there are, in general, also no sanctions for a contract not being in written form. Certainly, in exceptional cases other than Article 446(2) of the Civil Code (guarantee contracts) in business laws, including the Act on Special Commercial Transactions (special laws designed to regulate entrepreneurs), there are duties to reduce to writing and to issue written documents, however as a matter of interpretation under existing law it is difficult to regard copyright contracts as the kind of contracts that require the same kind of business regulation or regulation of terms. There is also, similarly, a long-entrenched view in Japanese academia that there is scant need to compel reduction to writing for copyright contracts alone, overlooking consistency with the general principles of contract law.

Naturally in terms of legislative theory, there is also an entrenched view from the standpoint of preventing subsequent disputes that it is, after all, better to require writing. The Agency for Cultural Affairs, which is responsible for the Copyright Act, is encouraging that course of action at public symposia and it is no doubt desirable to strive for a definite legislative resolution of the matter.

[1] Fumio Sakka, (2004) Annotated Copyright Act (2 nd ed.) Gyosei, p. 413.

6. Infringement of Rights

Infringement of Rights

What kinds of remedies are available to rights owners when rights under the Copyright Act have been infringed? The Copyright Act provides for the civil remedies of the rights to claim an injunction and damages, and also has criminal penalties for certain cases. This means that a person who has infringed copyright is subject to civil and criminal liability.

Section I Prerequisites for Copyright Infringement

First of all, the issue arises of what kind of acts will constitute an infringement of rights under the Copyright Act . In order to constitute an infringement, there must be an act of exploitation of a work, access and similarity.

(1) Access

Access means to be based on another's work. It follows that even if a person creates a work similar to another person's work, where the person has no knowledge of the other person's work and there is no access, this does not constitute an infringement of copyright ( One Rainy Night in Tokyo Case, Supreme Court 7 September 1978 (case 39) , Minshu Vol. 32 No. 6: 1145).

(2) Similarity

Similarity means that one's own work is similar to another person's work. Even if a person creates a work in reliance on another person's work, where there is no similarity, this does not constitute an infringement of copyright. Similarity has been interpreted as whether a work causes “the essential characteristics of the form of expression” of the other person's work “to be perceived directly as such” ( Parody Case; First Appeal to the Court of Last Resort, Supreme Court, 28 March 1980 (case 38) , Minshu Vol. 34 No. 3: 244).

Since it is, in the first place, creative expression that is protected in the form of works (Article 2(1)(i) Copyright Act ), where the part a work has in common with another's work is no more than an idea, not an expression, or is no more than a non-creative part, this is understood as not constituting an infringement of copyright, as there is no similarity ( Esashi Oiwake Case, Supreme Court 28 June 2001, Minshu Vol. 55 No. 4: 837).

(3) Act of Exploitation

Further, it is necessary for there to have been an act of exploitation covered by copyright.

(a) Acts of exploitation covered by copyright

Copyright includes (see Article 17 Copyright Act ); the right of reproduction (Article 21), the right of performance (Article 22), the right of presentation (Article 22-2), the right of public transmission etc. (Article 23), the right of recitation (Article 24), the right of exhibition (Article 25), the right of distribution (Article 26), the right to transfer (Article 26-2), the right to lend (Article 26-3), the right of translation or adaptation etc. (Article 27) and the right of the original author regarding the exploitation of a derivative work (Article 28). Accordingly, acts of reproduction, performance, presentation, public transmission, recitation, exhibition, distribution and transfer will constitute infringement of copyright if undertaken without the permission of the rights owner.

(b) Acts deemed to be infringements

Further, certain acts provided for in Article 113 of the Copyright Act are deemed to be infringements even if such an act is not, of itself, one of the above acts of exploitation included in copyright.

To illustrate, acts including the following are deemed to be infringements; the act of importing objects made without permission outside Japan for the purpose of domestic distribution (Article 113(1)(i)), the act of knowingly distributing objects made by an infringing act (Article 113(1)(i)), the intentional alteration or similar of rights management information (Article 113(3)) and the act of knowingly importing commercial phonograms intended for distribution outside Japan for the purpose of domestic distribution (Article 113(5)).

Section II Civil Remedies

The remedies given where copyright has been infringed are the right to claim an injunction and damages.

1. Right to Claim Injunction

It is possible to claim, against a person who has infringed or who is likely to infringe copyright, a “cessation or prevention” of the infringement (Article 112(1) Copyright Act ).

In this context “cessation or prevention” means a demand for “cessation… of infringement” against “those who infringe” and a demand for “prevention…of infringement” against “those who are likely to infringe”. In other words, what is meant is the cessation of continuous acts of infringement (such as the cessation of transmission over the Internet) and the prevention in advance of acts of infringement highly likely to be carried out in the future (such as the prevention of the transfer of illegally reproduced CDs).

The question arises at this juncture of what kind of persons will fall within “those who infringe”. Judicial precedent to date has interpreted “those who infringe” as meaning not only the subjects of physical acts of exploitation, but also subjects of acts of exploitation viewed from a normative perspective. The Karaoke Principle is illustrative. This principle originated in the Club Catseye Case (Supreme Court Decision, 15 March 1988 (case 46) , Minshu Vol. 42 No. 3, 199). The specific approach taken in this decision was to treat those whom it is difficult to describe as the subject of physical acts of exploitation as the subjects of normative acts of exploitation, paying attention to two factors, namely (1) management or control and (2) business profits. This Karaoke Principle has been repeatedly applied in lower court decisions concerning karaoke bar. It has also been applied even in lower court decisions relating to ‘ karaoke box' establishments, and further, cases have subsequently appeared where it has even been applied to various facts with no connection to karaoke (See File Rogue Case, Tokyo High Court, 31 March 2005; Rokuga Net Case, Intellectual Property High Court, 15 November 2005).

There is no argument that a claim for injunction will be upheld against persons who themselves carry out infringing acts (infringing subjects). However the issue is whether it is possible to claim an injunction against not only such persons who themselves carry out infringing acts (such as persons who engage in reproduction or public transmission), but also against those who do not themselves carry out infringing acts, but are in some way involved in the infringing acts of others (as ‘accessories'). This point has been the subject of active debate recently as a question of “indirect infringement” under the Copyright Act . Even amongst existing precedents, there are decisions upholding an injunction against persons who were not infringing subjects, but no more than simple ‘accessories' ( Hit One Case, Osaka District Court, 13 February 2003, Hanrei Jiho No. 1842, 120; Yoridori Midori Case, Osaka District Court, 24 October 2005, Hanrei Jiho No. 1911, 68).

2. Right to Claim Damages

Persons who have intentionally or negligently infringed the copyright of another are liable to compensate losses arising as a result (Article 709 Civil Code ).

(1) Calculation of Amount of Loss

Needless to say, it is not easy, in relation to copyright infringement, to establish the lost profits that a rights owner can no longer obtain due to another person's infringing act. For this reason the Copyright Act contains a number of provisions designed to simplify the calculation of losses (Article 114 Copyright Act ).

(a) Presumption based on profits obtained

The first method is a presumption based on the profits obtained by the infringer. In other words, the infringer's “profits, if any, obtained…from that infringement shall be presumed to be the amount of the loss suffered by the owner of such copyright, right of publication or neighboring rights” (Article 114 (2)). This provision means that, where for example an infringer gains profit from selling pirated CDs, the amount of that profit is presumed to be the amount of the loss.

(b) Amount equivalent to license fees

The next method is a claim for an amount equivalent to the relevant license fees. Where the above presumption has been defeated, or if the infringer made no profit in the first place, the claim is for an amount equivalent to the relevant license fees. This means that the rights owner “may claim” from the infringer “as the amount of the loss suffered, an amount equivalent to the monetary amount the copyright or neighboring rights owner would have received through exercising their rights” (Article 114 (3) ).

As copyright license fees are monies that should rightfully have been paid, these fees can be claimed whether or not the infringer has obtained profits. This provision is explained to be a statutory provision guaranteeing the payment of an amount equivalent to normal license fees as the minimum damages amount. In this sense, the infringer is unconditionally liable to pay.

Whilst there is no impediment to a claim for compensation for losses in excess of this amount equivalent to the relevant license fees, the court may take the circumstance into account where the infringer's negligence is minor in nature (Article 114 (4)).

(c) Calculations based on quantity transferred

The 2003 amendments introduced the provisions of Article 114 (1), under which the amount of a loss may be calculated by reference to the quantity transferred. In other words, where an infringer has transferred objects created by the infringer's infringing acts, the amount obtained by multiplying “the quantity of objects so transferred” (the transfer quantity) by the “amount of profit per unit” that the rights owner could have made from the sale of such objects if there had been no infringement “can be treated as the amount of the loss”. To illustrate, this means that where an infringer has transferred 10,000 pirated CDs, if the rights owner was making JPY 1000 on each legally produced CD, then the amount of the loss becomes JPY 1000 x 10,000 CDs = JPY 10 million.

Of course, this amount is removed from the dual aspects of the rights owner's sales capacity and any circumstances that would prevent sales by the rights owner. For example, even in the illustration above, where the production capacity of the rights owner in question meant sales of only 7000 pirated CDs were possible, the loss would become JPY 1000 x 7,000 CDs = JPY 7 million. Further, if there were circumstances to the effect that due to the infringer's sales efforts and the presence of alternative products in the market, sales of only 5000 pirated CDs could be achieved, the loss would become JPY 1000 x 5,000 CDs = JPY 5 million.

(2) Negligence

In claims for damages, unlike claims for injunction, there is a requirement of either intent or negligence in the infringer. Although there is a provision in the Copyright Act similar to Article 102 of the Patent Act on the presumption of negligence, it is in fact rare for a court to find that there was no negligence. To illustrate, even in cases where a publishing company is not itself creating the content of a publication, the reasoning that publishing companies have a duty to investigate the rights involved means that the courts almost never find against negligence.

The question of what kind of duty of care is owed by persons involved in the acts of others that infringe rights is also an issue in relation to negligence. There are specific cases in point regarding the duty of care owed by those who lease commercial karaoke equipment to karaoke bar. According to the Supreme Court, it is logical that those who provide leases of karaoke equipment should be bound to not only notify the other party to the lease that they should enter into a copyright licensing agreement with the Japanese Society for Rights of Authors, Composer and Publishers (JASRAC), but also to verify that such an agreement has been entered into, or an application to do so has been made, before handing over the karaoke equipment ( Video Mates Case, Supreme Court 2 March 2001 (case 62) , Minshu Vol. 55 No. 2, 185).

(3) Infringement of Copyright and Moral Rights of Author

Since the legal protection for copyright as property right and that of the author's moral rights are different, it is understood that where a claim for damages is made on the grounds of infringement of both kinds of rights, the solatium must be separately specified for each kind of infringement ( Parody Case, Supreme Court Decision, 30 May 1986 (case 36) , Minshu Vol. 40 No. 4, 725).

3. Claims for Restitution in Infringements of Author's or Performer's Moral Rights

The Act also contains the following provisions on the infringement of an author or performer's moral rights. In other words, when the moral rights of an author or performer have been infringed, the author or performer may, either instead of or in addition to damages, demand measures including those to restore his or her honor (Article 115).

In specific terms, the author may demand “measures appropriate to identify him or her as the author… or to correct distortions, mutilations or modifications, or to restore his or her honor or reputation”. In this context to “identify him or her as the author” means to take measures to display the name of the author where there has been an infringement of the right to have an author's name displayed. “Measures appropriate …to correct distortions, mutilations or modifications, or to restore his or her honor or reputation” means the publication of an apology or correction.

According to judicial precedent, the “honor or reputation” mentioned in this provision refers to one's reputation in society. In order for a claim under this article to be upheld, it is not enough for merely a person's subjective feelings of honor to have been injured. Rather, it is necessary for the person's reputation in society to have been harmed ( Parody Montage Case, Second Appeal to Court of Last Resort, Supreme Court, 30 May 1986 (case 36) , Minshu Vol. 40 No. 4, 725).

4. Claim of Unjust Enrichment

It is also possible to claim the return of unjust enrichment. As there is no express provision in the Copyright Act on claims for return of unjust enrichment, the foundation for such a claim is Articles 703 and following of the Civil Code .

This means that where a person has profited from another's copyright without legal cause and this has brought about loss in the other person, the rights owner may claim the return of unjust enrichment.

Section III Criminal Penalties

Chapter 8 of the Copyright Act contains provisions on criminal penalties (Articles 119-124). In other words, a person who infringes copyright is subject not only to civil liability but also to criminal liability. Of course, the Copyright Act deals solely with intentional crimes, negligent acts are not covered. Further, the offences are mostly subject to prosecution only on complaint from the victim (Article 123).

What is more, acts infringing Japanese copyright are subject to criminal penalties even if they have been carried out overseas, limited to where the offender is a Japanese national (Article 27(i) Act for the Enforcement of the Criminal Code , Article 3 Criminal Code ). It follows that even acts that, for example, are not illegal under civil law (such as acts of reproduction carried out in a country that do not have copyright law (known as a “copyright heaven”) will be subject to criminal penalties where undertaken by Japanese nationals. This has been justified from the perspective that respect for copyright is a desirable foundation for civilized nations.

A summary of criminal penalties representative of the Copyright Act follows.

1. Offense of copyright infringement

As an example, the Act provides that a person who has infringed copyright is punishable by imprisonment for a term not exceeding 5 years or a fine not exceeding 5 million yen (Article 119).
This was increased to a term not exceeding 10 years or a fine not exceeding 10 million yen by the 2006 amendments (Act No. 121 of 2006; to come into effect on 1 July 2007).

2. Offence of transfer of measures for circumvention of technological protections

The Act provides that persons who transfer to the public devices having a principle function of the circumvention of technological protections or a copies of such programs, or produce or import the same for the purpose of transfer to the public (Article 120-2(i)), and persons who are in the business of circumventing technological protections in response to requests from the public (Article 120-2(ii)) are punishable by imprisonment for a term not exceeding 3 years or a fine not exceeding 3 million yen (Article 120-2). Technological protections means, for example, protections such as the Serial Copy Management System (SCMS), the Copy Generation Management System (CGMS) and the False Synch Pulse method which each prevents copying of recorded digital media within certain limitations (the Macrovision method).

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