Japan: Copyright 2017

1 COPYRIGHT SUBSISTENCE

1.1 What are the requirements for copyright to subsist in a work?

Works in which thoughts or sentiments are expressed in a creative way, and which fall within the literary, scientific, artistic or musical domain, are copyrightable.

1.2 On the presumption that copyright can arise in literary, artistic and musical works, are there any other works in which copyright can subsist and are there any works which are excluded from copyright protection?

Novels; play or film scripts; dissertations, lectures and other literary works; musical works; choreographic works and pantomimes; paintings, engravings, sculptures and other artistic works; architectural works; maps and diagrammatical works of a scientific nature, such as drawings, charts and models; cinematographic works; photographic works; and computer programs are all copyrightable.

However, work categorised as "applied work", which is usually for sale as utility goods or souvenirs, cannot be the subject of copyright protection.

1.3 Is there a system for registration of copyright and if so what is the effect of registration?

Yes, but a work may be protected by copyright without any copyright registration. However, the transfer (other than by inheritance or other succession) of copyright or a restriction on the disposal of the copyright, and the establishment, transfer, modification or termination of a pledge on a copyright or a restriction on the disposal of a pledge established on the copyright, may not be asserted against a third party unless it has been registered with the Agency of Cultural Affairs (the ACA) or, in the case of software programs, at the Software Information Centre (the SOFTIC). In addition, the author of a work that is made public, anonymously or pseudonymously, may have his or her true name registered with the ACA and the SOFTIC based on the moral right of the author with respect to said work, regardless of whether he or she actually owns the copyright therein; and the copyright holder of any work, and/or the publisher of an anonymous or pseudonymous work, may have registered said work's date of first publication or the date when the work was first made public. Furthermore, the author of a computer program may have the date of the creation of his or her work registered with SOFTIC provided it is done within six months of the work's creation.

The registration costs are as follows:

1.4 What is the duration of copyright protection? Does this vary depending on the type of work?

The protection period begins at the time the work is created and subsists for 50 years after the death of the author or, in the case of a jointly authored work, for 50 years after the death of the last surviving co-author. The copyright protection period for a work that bears the name of a juridical person or other corporate body as its author is 50 years from either the date the work was first made public, or, if the work was not made public within 50 years from its creation, 50 years from the date of its creation.

The copyright period for a cinematographic work is either 70 years from the date the work was first made public, or, if the work was not made public within 70 years from its creation, 70 years from the date of its creation.

1.5 Is there any overlap between copyright and other intellectual property rights such as design rights and database rights?

Yes. A work may be protected by copyright and registered as a trademark, in whole or in part; there are some cases in practice.

1.6 Are there any restrictions on the protection for copyright works which are made by an industrial process?

No, there are no restrictions.

2 OWNERSHIP

2.1 Who is the first owner of copyright in each of the works protected (other than where questions 2.2 or 2.3 apply)?

The author of a copyrighted work is the first owner.

Exemptions to this principle are authorship of a work made by an employee (see question 2.3) and authorship of a cinematographic work.

Authorship of a cinematographic work is attributed to those who, by taking charge of producing, directing, filming, art direction, etc., have creatively contributed to the creation of the cinematographic work as a whole, with the exception of authors of novels, play and film scripts, music or other works adapted or reproduced in such cinematographic work as they hold copyright in the underlying work.

2.2 Where a work is commissioned, how is ownership of the copyright determined between the author and the commissioner?

A person who commissions a copyrightable work usually requires the transfer of the copyright in accordance with the commissioning agreement, and may become the owner of the work. Moral rights may not be transferred and, in practice, a person commissioning work which gives rise to moral rights (see question 4.2 below) will require the author not to exercise those moral rights.

2.3 Where a work is created by an employee, how is ownership of the copyright determined between the employee and the employer?

The authorship of a work that, on the initiative of an employer, is made by an employee in the course of the performance of his or her duties in connection with the employer's business and (except for computer programs) is made public by the employer as a work under its own name, shall be attributed to the employer unless there are contract terms or work regulations applicable at the time the work was created that provide that the work should be attributed to the employee who created the work.

2.4 Is there a concept of joint ownership and, if so, what rules apply to dealings with a jointly owned work?

Yes. A co-holder of a copyright in a work of joint authorship or of any other co-owned copyright ("joint copyright") may not transfer or pledge his share without the consent of the other co-holder(s). A joint copyright may not be exercised without the unanimous agreement of all co-holders, although a co-holder may not, without justifiable grounds, refuse to give the consent required. Co-holders may appoint one of them to exercise their moral rights, as their representative, and limitations on the authority of a person to exercise the rights as a representative may not be asserted against a third party without knowledge of such limitations.

3 EXPLOITATION

3.1 Are there any formalities which apply to the transfer/assignment of ownership?

There are no specific formalities to the transfer/assignment of ownership. However, the transfer (other than by inheritance or other succession) of ownership may not be asserted against a third party unless it has been registered (see question 1.3 above). In addition, if the assignee would like to obtain (i) rights of translation, adaptation, etc. (the exclusive right to translate, arrange musically or transform, or dramatise, cinematise, or otherwise adapt his work), and (ii) right in the exploitation of a derivative work (exclusive rights of the same types as those possessed by the author of the derivative work), it is necessary to refer to the rights transferred, or it shall be presumed that such rights have been reserved to the transferor.

3.2 Are there any formalities required for a copyright licence?

No, there are not.

3.3 Are there any laws which limit the licence terms parties may agree (other than as addressed in questions 3.4 to 3.6)?

No, there are not.

3.4 Which types of copyright work have collective licensing bodies (please name the relevant bodies)?

The music industry has several collective licensing bodies, including Japanese performing rights societies (such as the Japanese Society for Rights of Authors, Composers and Publishers (JASRAC) and the Recording Industry Association of Japan (RIAJ)), which collect and distribute secondary use fees from commercial recordings from broadcasters and remuneration from CD rental shops. The literary industry has several licensing bodies, including the Japan Writers' Association, the Writers' Guild in Japan and the Japan Writers Guild. Art also has several licensing bodies, including the Tokyo Art Club. The Japan Reproduction Right Center (JRRC) is entrusted by several associations in relation to copyright (Japan Art Copyright Association, Japan Photographic Copyright Association, the Japan Writers' Association, Writers' Guild of Japan (Nihon Kyakuhonka Renmei), Japan Writers' Guild (Nihon Scenario Sakka Kyokai), Japan Academic Association for Copyright Clearance, Japan Publishers Copyright Organization and the Copyright Council of Newspaper Publishers) to collect and distribute remuneration derived from relevant copyrighted works. The Center for Performers' Rights Administration (CPRA) acts for musical performers and actors in collecting remuneration from CD rental shops and digital equipment makers, which are obliged to collect remuneration for audio home recording. The Audio Visual Rights Management Association (aRma) acts for performers and actors in collecting and distributing remuneration in relation to secondary use of their work (i.e. use after the original use), as well as managing approval to broadcast (especially for old audio-visual work which did not obtain appropriate approvals from each performer and actor when made).

Owners of copyrighted works may either entrust administration of their copyright to their entity of choice, or manage their rights personally in whole or in part. If a copyright owner chooses to entrust his or her copyright to an administrator, this entity and the owner will execute an entrustment agreement.

3.5 Where there are collective licensing bodies, how are they regulated?

The Act on Management Service of Copyright, etc. regulates the registration of collective licensing bodies and their rules. Before the act came into effect, regulation of collective licensing bodies was rather strict, and approval by the Minister of the Agency of Cultural Affairs was needed to establish any such body, but registration is now much simpler, and many collective licensing bodies have been established. Rules of such bodies have to be reported to the Agency of Cultural Affairs.

3.6 On what grounds can licence terms offered by a collective licensing body be challenged?

It would be possible to make such a challenge by asserting that (i) exemptions from copyright infringement, for example, private use, use for broadcasting, use for education, apply, (ii) the use challenged is not an infringement of copyright, for example, the work is not protected by copyright, misidentification of the facts, or (iii) the basis of calculation is incorrect.

4 OWNERS' RIGHTS

4.1 What acts involving a copyright work are capable of being restricted by the rights holder?

Rights of reproduction, performance (right to perform his/her work for the purpose of making a work seen or heard directly by the public), screen presentation (right to make his work publicly available by screen presentation), public transmission through the internet (right to effect a public transmission of his work including, in the case of automatic public transmission, making his work transmittable), recitation, exhibition, distribution, ownership transfer, rental, translation and adaptation of copyrighted work are restricted by the rights holder under the Copyright Act.

4.2 Are there any ancillary rights related to copyright, such as moral rights, and if so what do they protect, and can they be waived or assigned?

There are ancillary (1) moral rights, and (2) neighbouring rights.

An author shall have the moral rights to (i) make the work and derivative work thereof public, (ii) determine how the author's name is shown (whether it is his or her true name or a pseudonym), and (iii) maintain the integrity of his or her work and its title, without distortion, mutilation or other modification against the author's will.

A performer has ancillary moral rights to (i) indicate his or her name and to preserve its integrity, (ii) make sound or visual recordings of his or her performance, (iii) broadcast and to wire-broadcast his or her performance, (iv) make his or her performance transmittable, (v) transfer ownership of his or her performance, and (vi) offer his or her performance to the public by rental. In addition, a performer has the right to receive secondary use fees from broadcasting organisations or wire-broadcasting organisations using commercial media incorporating a sound recording of the performance through designated organisations (this right is not deemed to be an ancillary right).

Producers of sound recordings, broadcasting organisations and wire-broadcasting organisations all have neighbouring rights.

A holder of a right of reproduction may create a right of publication in favour of a person who undertakes to publish a work in a document or picture. The holder of a right of publication for the purpose of distribution and as provided by the creation of the right of publication, also possess the exclusive right to reproduce the original of the work with respect to which the right of publication has been established, without change and in a document or a picture, by means of printing or other mechanical or chemical processes. However, the holder of the right of publication may not authorise a third person to reproduce the work that is the subject of the right of publication.

4.3 Are there circumstances in which a copyright owner is unable to restrain subsequent dealings in works which have been put on the market with his consent?

If a copyright owner grants a non-restricted licence to use, including subsequent dealings in works, he/she is unable to restrain subsequent dealings in the works unless such non-restricted licence is terminated or cancelled.

5 COPYRIGHT ENFORCEMENT

5.1 Are there any statutory enforcement agencies and, if so, are they used by rights holders as an alternative to civil actions?

No, there are not.

5.2 Other than the copyright owner, can anyone else bring a claim for infringement of the copyright in a work?

An author may bring a claim for infringement of the copyright in a work in accordance with its moral rights even after the author transfers the copyright.

In addition, collective licensing bodies may also bring a claim if the body has authority to do so in accordance with the agreement with the copyright holder.

5.3 Can an action be brought against 'secondary' infringers as well as primary infringers and, if so, on what basis can someone be liable for secondary infringement?

Under the Copyright Act:

1. importing, for the purpose of distribution in the country, objects/goods which infringe moral rights of its author, copyrights, rights of publication, moral rights of a performer or neighbouring rights;
2. distributing, possessing for the purpose of distributing, or exporting as a business or possessing for the purpose of exporting as a business, objects made by infringement of moral rights of an author, copyrights, rights of publication, moral rights of a performer or neighbouring rights, by a person who is aware of such infringement;
3. using on a computer in the course of one's business a reproduction made by infringement of the copyright of a computer program work shall be deemed to constitute an infringement of that copyright, to the extent that the person using the reproduction was aware of the infringement at the time that he acquired authority to use the reproduction; and
4. distributing, importing or possessing for the purpose of distributing, a reproduction of a work or performance with false information intentionally added as rights management information, removed or modified rights management information, and publicly transmitting or making transmittable such work or performance, etc., with knowledge of the infringement,

are deemed to constitute infringement on the moral rights of the author, copyrights, moral rights of the performer or neighbouring rights pertaining to rights management information concerned. Each right-holder above can bring an action against the deemed infringer (i.e., "secondary infringer") in accordance with the Copyright Act.

5.4 Are there any general or specific exceptions which can be relied upon as a defence to a claim of infringement?

Copying for private use only (to a limited extent) is the most common defence to a claim of infringement; other general defences include:

• independent creation (i.e. the "infringing" work was created independently from the "infringed" work without dependence on the infringed work); and
• no substantial similarity (there is no similarity which constitutes an infringement of copyright).

"Dependence" means to have knowledge of another person's copyright work and to use that knowledge in one's own work. Even if the outcome of someone's creation is the same or similar to another person's existing copyrighted work, to the extent that they did not know of the copyrighted work, they will not be treated as having used the copyrighted work, and the new work will have been created without dependence on the pre-existing work; this is still the case if the creator was in a position to have known of the existence of the prior copyrighted work, and even if the lack of knowledge was as a result of negligence.

In the case of most copyright works, dependence is proven based on whether it is similar to a considerable degree, i.e., it is empirically unthinkable for a work to be that similar without dependence on the earlier work. The similarity to the copyright work is judged on the extent to which the essential characteristics of expression of the other person's copyrighted work can be perceived in the new work.

In addition, commonplace expressions are not recognised as copyrightable works since granting an exclusive privilege to such expressions may limit later creator's choice and adversely affect cultural development.

Whilst there is no general doctrine of 'fair use' in Japan, there are some equivalent exemptions which can be relied upon as a defence under the Copyright Act, such as:

• quoting from and exploiting a work already made public fairly and to the extent justified by the purpose of quotations;
• consequent copy of copyrighted work, to a limited extent;
• limited use of copyrighted work for consideration before a licence is entered into;
• test use of published work, to a limited extent;
• reproduction in libraries;
• reproduction in school textbooks, schools and other educational institutions;
• use for those with disabilities;
• reproduction of editorials in newspapers and/or magazines in relation on current topics; and
• reproduction for judicial proceedings.

5.5 Are interim or permanent injunctions available?

Yes. An author, copyright holder, holder of the right of publication, performer, or holder of neighbouring rights may demand cessation of an infringement of copyright, moral rights, and/or ancillary rights. When applying for an injunction, the author, the copyright holder, the holder of the right of publication, or the performer or the holder of the ancillary rights may also demand the taking of measures necessary to effect the cessation or prevention of the infringement, such as the destruction of objects constituting the acts of infringement, objects made by acts of infringement, and/or machines and tools used exclusively for acts of infringement. However, it should be noted that injunction applications may require a hearing of the facts with both parties and ex parte injunctions are only granted in extreme cases.

5.6 On what basis are damages or an account of profits calculated?

Damages are usually calculated by multiplying (a) the number of objects which have been sold or the number of reproductions of works or performances, by (b) the per unit profit on the objects that the copyright holder could have sold had there been no such act of infringement, but only within the limit of the copyright holder's ability to sell or take other similar actions with respect to the subject of the alleged infringement. If the infringer obtains certain profits by the infringement, it is possible to presume that the damages are the same as those profits.

In addition, a copyright holder may assert his/her copyright against an infringer who intentionally or negligently infringes copyright or ancillary rights. Compensation for damages would be calculated based on the amount that would have been received by the copyright holder through the exercise of his/her copyright or ancillary rights.

5.7 What are the typical costs of infringement proceedings and how long do they take?

Judicial proceedings cost about JPY1,000,000 to JPY3,000,000 (legal fees depending on counsel and case) plus JPY2,000 (court costs) for an injunction; and JPY2,000,000 to JPY5,000,000 (legal fees) plus JPY10,000 (in the case of the amount claimed is JPY1,000,000) or more in relation to an action for damages and remedies depending on the amount of the damages claimed and the level to which the claim is contested. Court costs are not recoverable, and legal fees are not fully recoverable by the successful party. The time taken to obtain a first-instance decision varies from one to one-and-a-half years. The time taken to obtain a preliminary injunction varies from several days to one month, depending on the case, and the first appeal can take from one to two years.

5.8 Is there a right of appeal from a first instance judgment and if so what are the grounds on which an appeal may be brought?

Yes. Appeal from a copyright-related judgment of a district court is made to the Intellectual Property High Court (for civil cases), or other high courts (for criminal cases and civil cases having jurisdiction, other than the Tokyo High Court). The Intellectual Property High Court was established on 1 April 2005 as a special branch of the Tokyo High Court that exclusively hears intellectual property cases.

An appeal to the court of second instance may be filed against a final judgment made by a district court (as the court of first instance) or a final judgment made by a summary court unless both parties have agreed not to file an appeal to the court of second instance while reserving the right to file a final appeal.

5.9 What is the period in which an action must be commenced?

An action for compensation in accordance with the Civil Code must be sought within the earlier of three years of both the infringement and the infringer becoming known, or 20 years of the infringement (whether known or not). If a copyright holder seeks compensation, it is recommended to commence the lawsuit within three years of the infringement.

6 CRIMINAL OFFENCES

6.1 Are there any criminal offences relating to copyright infringement?

Yes; see below.

6.2 What is the threshold for criminal liability and what are the potential sanctions?

A person who infringes copyright, right of publication or neighbouring rights (excluding some exemptions provided in the Copyright Act) is liable to imprisonment with labour for up to 10 years, a fine of not more than JPY10 million, or both.

A person who infringes an author's moral rights, or who, for profit-making purposes, causes a machine that has a reproduction function to be used to reproduce copyrighted works or performances (e.g., automated bulk video copying) or a person who commits an act deemed to constitute copyright infringement is liable to imprisonment with labour for up to five years, a fine of up to JPY5 million, or both.

A person who infringes an author's or performer's moral rights after the author's or performer's death is liable to a fine of up to JPY5 million.

There are also criminal provisions against the illegal reproduction of a computer program, circumvention of technological protection measures, illegal reproduction of a person's true name or widely known pseudonym, and the reproduction, distribution or possession of a commercial phonogram without authority, etc.

7 CURRENT DEVELOPMENTS

7.1 Have there been, or are there anticipated, any significant legislative changes or case law developments?

A bill to amend the Copyright Act was passed on 25 April 2014 and the amended Act came into force on 1 January 2015. The amendment expands publication rights to include digital publications and wire transfers via the internet, and other updates to the Copyright Act.

An amendment in accordance with the Beijing Treaty on Audiovisual Performances will become enforceable and the performance provided in the treaty will be protected under the Copyright Act once the treaty becomes effective.

7.2 Are there any particularly noteworthy issues around the application and enforcement of copyright in relation to digital content (for example, when a work is deemed to be made available to the public online, hyperlinking, etc.)?

There are some specific provisions addressing the digital exploitation of works under the Copyright Act that have been amended and expanded to keep up with developments in the digital society, for example:

• rights of public transmission;
• compensation for private sound and visual recording;
• copying by the National Diet Library for the collection of internet material;
• ephemeral reproduction for maintenance or repairs on reproducing machines with built-in memory; and
• copying for information analysis.

Considering the nature of digital content which does not degrade when copied, there is a remuneration system under the Copyright Act enabling non-profit corporations designated by the Commissioner of the Agency for Cultural Affairs to claim remuneration for sound recordings and visual recordings made for private use. The designated non-profit corporations are the Society for Administration of Remuneration for Audio Home Recording (SARAH) and the Society for the Administration of Remuneration for Video Home Recording (SARVH).

In April 2016, a Cabinet committee submitted a report with regard to the intellectual property system and the coming generation, particularly as it relates to new technologies such as the Internet of Things (IoT), big data, and Artificial Intelligence (AI). In the report, the committee recommends the introduction of flexible limitation of copyright in order to accelerate innovation in digital works.

Originally published by International Comparative Legal Guide: Copyright 2017.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.