This Section explains the purpose of the Copyright Act. It is important to understand that the Copyright Act is not just written for those who want to protect their rights.
What is the Copyright Act?
(Japanese) Copyright Act
Article 1 of the Copyright Act states the purpose of the Act.
Article 1 (Purpose)
The purpose of this Act is to provide for authors' rights and neighboring rights with respect to works, as well as
with respect to performances, phonograms, broadcasts, and cablecasts, and to ensure protection for the rights of
authors and other such persons while according attention to the fair exploitation of these cultural products, and
thereby to contribute to cultural development.
Konaka
The Copyright Act protects the rights of those who create copyrighted works.
Sumiki
That is correct, but there is another important role. That is the fair exploitation of copyrighted works. In
other words, we make it easier for everyone to use copyrighted works by determining the extent to which they can
be used freely.
Daiin
If you protect the rights too strictly, it will be difficult for people to use copyrighted works, and if you
give them too much freedom, your rights will not be protected ...
Sumiki
It is difficult to find a balance between the protection of rights and fair exploitation.
Konaka
What exactly do you mean by “cultural development”?
Sumiki
Cultural development as referred to in the Copyright Act essentially means the creation of a wide variety of
expressive works. In the field of technology covered by patents, to give an extreme example, it could just be a
single technology. For example, if the price is the same, everyone would want to use the battery that lasts the
longest. But this is not the case for copyrighted works. Sometimes you would like to listen to Mr. Children
songs, sometimes you want to listen to Perfume songs, right?
Konaka
I see. So, the idea is that by creating a variety of expressions, we can create a richer society. Many people
create copyrighted works every day, and because there are no registration procedures required, the system makes
it easier for many copyrighted works to be created.
Point
The purpose of the Copyright Act is to contribute to cultural development through the protection of the rights of
authors and the fair exploitation of copyrighted works.
The Copyright Act determines what a copyrighted work is, what kind of rights are copyrightable (protection of
authors), and in what cases copyright is limited (what is fair exploitation?).
Konaka
However, the law is difficult and I don't understand it well ... There are many places where the law is not
very specific.
Sumiki
The law intentionally stipulates abstractly, and leaves room for interpretation, so some people may have
different opinions. Sometimes you don't know until a decision by the court is given.
Daiin
This means that sometimes things cannot be clearly defined as black and white right away.
Sumiki
We want to keep things black and white if possible. There are many materials that teachers can refer to. One of
them is titled the "Guidelines for Article 35 under the Amended Copyright Act".
Memo
Guidelines for Article 35 under the Amended Copyright Act are explained in detail in Chapter 2.
section
02
What is a copyrighted work?
This section explains what a "copyrighted work" is, as defined under the Copyright Act.
Definition of copyrighted works
Konaka
Copyrighted works are not diminished by their use, are they?
Sumiki
That's right. For example, if a car is stolen, it will be gone, so you will know right away. However, most of
the time even if text is stolen, it will not be lost, so in most cases it is not immediately obvious if it is
being misused. Among such intangible information, information that contributes to cultural development is
copyrighted work.
Daiin
But you can tell when a painting on a canvas is stolen, can't you?
Sumiki
A painting is indeed a copyrighted work, but it has two aspects: one as a "tangible object" and the other as
"information". You may think of a copyrighted work as a "tangible object", but a copyrighted work is
"information". In other words, the copyrighted work (information) is superimposed on the tangible object
(painting). It would be a problem if someone made and sold postcards or other
goods using the painting without permission, wouldn't it? Even if you buy a painting, you are simply
receiving the rights to the tangible object, the physical ownership (title). The rights to the information
(copyright) of the person who originally painted the painting remain with the person who painted it.
Daiin
I see, so it's not the same as physical ownership.
Memo
Supreme Court, January 20, 1984, HANREI JIHO No. 1107, p. 127 [Ganshinkei Case].
The Copyright Act protects "copyrighted works". A copyrighted work is defined as follows:
Article 2(1)(i)
"a creatively produced expression of thoughts or sentiments that falls within the literary, academic, artistic, or
musical domain"
Konaka
Is a table listing the height and weight of the students in my class copyrighted work because it is an
expression?
Sumiki
No, mere data is not thought or sentiment so it is not considered a copyrighted work.
Daiin
I often hear that cooking recipes are not copyrighted.
Sumiki
The idea itself is not a copyrighted work because it has to be expressed. Just having an idea in your head is
not subject to copyright protection. The idea of the recipe itself is not a copyrighted work, but if it is
turned into a book or a web article, the pictures and text may be copyrighted, so you should be careful.
Point
A work is not a "copyrighted work" unless it is a creative expression of thoughts or sentiments.
Examples of works that are not copyrighted works under the Copyright Act:
Something that is just a thought in your head (an idea): the story of a novel is also not protected if it is
just a thought. What is expressed as a novel is protected.
Data and facts only: obituaries, information on personnel transfers, population lists for each prefecture,
etc., do not express the thoughts or sentiments of the person expressing them, and therefore cannot be an
expression of "thoughts or sentiments" and are not copyrighted works.
Commonplace expressions and very short sentences: phrases that anyone would use, such as "blue skies," are
often considered to be non-creative.
Examples of copyrighted works include the following (Article 10(1)):
Choreography for Japanese dance, ballet, dance, pantomime, etc.
Works of fine art
Paintings, prints, sculptures, cartoons, calligraphy, stage sets, flower arrangements, etc. (including
arts and crafts such as tea bowls, pots, swords, etc.).
Architectural works
Palaces, triumphal arches, gardens, towers, and other architectural structures (must be appreciable).
Maps and diagrammatic works
Maps, academic drawings, charts, blueprints, three-dimensional models, globes, etc.
Cinematographic works
Recorded moving images such as theatrical movies, animations, videos, YouTube videos, TikTok videos, and
video portions of game software.
Photographic works
Portraits, landscapes, documentary photography, advertising photography, etc.
Works of computer programming
Operating systems (OS), application software, programs for consumer electronics, etc.
In addition to these works, the following works are also available (Articles 11, 12, and 12-2)
[Types of works (Articles 11, 12, 12-2)]
Type
Example
Derivative works
Works created by translating, arranging, transforming, or adapting the works in the table above.
Compilation works
Encyclopedias, dictionaries, newspapers, magazines, poetry books, etc.
Database works
Encyclopedias, dictionaries, etc. in computer-searchable form.
A compilation is a copyrighted work if the selection and arrangement of materials are creative. Although a
compilation as a whole is protected as a copyrighted work, when using individual articles in a dictionary,
magazine, etc., the permission of the respective copyright owners is required, as each article is also a
copyrighted work.
A database is a copyrighted work if there is creativity in the way the data is selected and the systematic way the
data is organized for retrieval, even if the individual data collected is not copyrightable.
Daiin
The data is not a copyrighted work, but the database is.
Sumiki
For example, copyrightability may be recognized when information that cannot be searched in other databases can
be retrieved, or when you are creative in the selection of keywords for retrieving the same information.
Although the following items are copyrighted works, they are created for the purpose of making them known to the
public and making them widely available, so they can be used without the copyright owner's permission (Article
13).
Examples of copyrighted works that can be used without permission:
Constitution and other laws and regulations.
Notices, directives, and notices of the national government, local governments, etc.
Court judgments, decisions, orders, etc.
Translations and compilations of the above prepared by the national government, local governments, etc.
Q
Now here is a quiz. Are the following items copyrighted works protected by the Copyright Act?
(1) Fantasy novel setting.
(2) A cat drawing on a piece of notepaper, done at the behest of a relative's child.
(3) Names of cartoon characters.
(4) Graphs in student reports.
(1) Fantasy novel setting
Konaka
Since the novel is copyrighted, is the setting copyrighted as well?
Sumiki
No, an abstract setting alone does not constitute a copyrighted work. For example, recently, there are novels,
manga, and anime in which the main character is transported to and explores another world. This level of
setting itself is within the scope of an idea and is not copyrighted, so writing a new novel with this kind of
setting is not an infringement of copyright.
(2) A cat drawing on a piece of notepaper that a relative's child asked me to draw.
Daiin
Something like a drawing on a piece of notepaper would probably be thrown away immediately so is not a
copyrighted work, is it?
Sumiki
No, it does not matter under the Copyright Act when you throw it away, it is a copyrighted work because it was
a "creative expression" at the time it was drawn.
Memo
The word "expression" may sound like it has to be fixed on some object, but being fixed is not a requirement
for a copyrighted work. For cinematographic works, it is a requirement that the copyrighted work be fixed.
(3) Names of cartoon characters
Konaka
This is surely a copyrighted work!
Sumiki
Nice try. This is not a copyrighted work. Konaka's name is not a copyrighted work either. There are various
opinions on it, but I think it can be categorized as not being "within the literary, academic, artistic, or
musical domain" or not having creativity. However, a picture of a character is a copyrighted work.
Memo
Concerning a picture of a character, the name can be subject to the integrity right as "the title of the work"
(Article 20(1)).
(4) Graphs in student reports
Daiin
I don't think a graph is a copyrighted work. Mere data isn't a copyrighted work, and if it were just a graph
of data, it wouldn't be creative.
Sumiki
If the graph looks the same no matter who draws it in Excel or other software, it is not creative and is not
likely to be a copyrighted work. However, if the graph shows, for example, beer consumption, and uses a
creative way to express it, such as by using a picture of a beer mug instead of a bar graph, the creativity of
the graph may be recognized and the work may be copyrighted work.
section
03
Who is the author?
This section explains "author" under the Copyright Act. It is important to understand that there are not only individual authors but also corporate authors and joint authors.
Definition of author
Article 2(1)(ii) of the Copyright Act defines an author.
Article 2(1)(ii)
Author means a person who creates a work.
We learned in the previous section what copyrighted works are. The person who creates them is the "author".
It is not only professional creators who are authors. If a kindergarten or elementary school student draws a
picture, then they are the author of the picture. If they write a letter, the person who wrote it is the author of
the letter. If you subcontract the creation of a copyrighted work, such as an illustration or a computer program,
the subcontractor who created the copyrighted work is the author.
Point
The author is the creator of the copyrighted work. It does not matter if such a person is a professional or
amateur, child or adult!
Konaka
The other day I took a picture of a drawing by a relative's kindergarten child and posted it on SNS ...
Sumiki
A child can be an author too, even if the child is in kindergarten. However, I do not think that a kindergarten
child would be able to judge this, so you should obtain permission from the parents.
Konaka
Ugh ... that was a mistake ... I'm sorry ...
Authors and copyright owners
The "author" is the person who created the copyrighted work, and the "copyright owner" is the person who holds the
copyright. Basically, "author = copyright owner". However, as explained in the next section (Section 04 What is
Copyright?), copyright as an economic right can be transferred or inherited, so the situation of "author ≠
copyright owner" happens sometimes. When using copyrighted works, permission should be requested for the
following:
Matters related to moral rights: obtain permission from the author.
Matters related to copyright (economic rights): obtain permission from the copyright owner.
Moral rights and copyrights (economic rights) are explained in the next section.
Corporate works
If you create a work in the course of duty, the individual who created it may not be the author, but an
organization such as a company, school, or university may be the author (Article 15). The following requirements
must be met for a work to be a corporate work:
The copyrighted work must be prepared based on the initiative of the corporation, etc.
Creation by an "employee" of a corporation, etc.
To be created "in the course of duty".
When "publicizing" the copyrighted work, the copyrighted work must be published under the name of the
corporation, etc.
There is no provision in the "contract, work regulations," or any other document at the time of the creation
of the copyrighted work that designates the employee as the author.
For requirement (1), if a copyrighted work is created without specific instructions from the employer but with the
final approval of the employer, it is considered to be "created at the employer's initiative”. In addition, even
if an employee comes up with an idea and creates the copyrighted work without the approval of the employer, if the
copyrighted work is created in the course of duty as far as it is assumed to be based on the job description, it
is considered to have been "created at the employee's initiative".
Memo
The requirement of "the initiative of the corporation, etc." is satisfied if there is an employment relationship
between the corporation, etc., and the employee, and the employee is performing the prescribed duty under the
business plan of the corporation, etc. or a contract concluded by the corporation, etc. with a third party, etc.
even without specific instructions or consent from the corporation, etc. as long as the creation of the work is
scheduled or expected in the performance of the duty of the employee (Intellectual Property High Court, August
4, 2010, HANREI TIMES No. 1344, p. 226 [Kitami Institute of Technology Case]).
For requirement (2), it is generally someone who has an employment relationship. This could be an employee of a
company or a staff member of a university. Temporary staff may fall under requirement (2) since they are not
directly employed by the company but work under specific instructions at the client company, etc.
For requirement (3), it does not apply if the work was not created in the course of duty. For example, if an art
teacher paints pictures as a hobby on their days off, they are the author of the copyrighted work, not the
employer.
The requirement (4) does not apply to lectures by university professors, which are published under the name of the
individual professor.
For requirement (5), if there is a contract or work regulation that stipulates that the employee or staff member
is the author of the copyrighted work they created or that the copyright belongs to the employee or staff member,
the copyrighted work is not a corporate work and the creator is the author.
In the case of corporate work, a corporation, etc. becomes the "author" and "copyright owner" (Articles 15 and
17(1)).
Daiin
Are the slides I made for a class at the university considered corporate work?
Sumiki
If the copyrighted work is prepared for an individual class, it will be published in the name of the professor,
not in the name of the university when it is published. Since under requirement (4), the copyrighted work must
be published under the name of a corporation, etc. when it is "published" does not apply, the author must be Dr.
Daiin.
Daiin
That's a relief.
When more than one person is the author (co-authors)
There are times when more than one person may create a copyrighted work. For example,
several people may create a single painting on a canvas. Such a work is called a "joint work" (Article 2(1)(xii)).
The copyright in a joint work is shared by all co-authors.
Memo
Article 2(1)(xii) defines a joint work as "a work created by two or more persons whose contributions to the work
cannot be separated so as to allow each part of the work to be used independently".
Other examples include when a copyright is assigned, or when the original copyright owner dies and the copyright
is inherited by two of the owner's children.
Under joint copyright, a co-owner cannot exercise their rights without the agreement of all the co-owners (Article
65(2)).
The "agreement" in Article 65(2) is that the other joint owners cannot object unless they have "justifiable
grounds" to do so.
Tokyo District Court, September 28, 2000 (1999 (wa) 7209) [Economics Book Case] is one example of a case in which
the other co-author was found to have "justifiable grounds" to prevent an agreement. In this case, a co-author of
an economics book jointly written by researchers requested an agreement for a reprint of the book and publication
of a Korean translation, but the other co-author B, refused. The court found that there were "justifiable grounds"
because the book had become obsolete several years after it was written, B's contribution to the book was
considerably greater than A's, and it could not be said that A would be threatened financially or that his
scholarly achievements would be diminished if he was not allowed to reprint or translate the book.
section
04
What is Copyright?
This section explains "copyright" under the Copyright Act including moral rights and copyright (economic rights), as well as neighboring rights. It also explains the terms protection, licensing, and limitation of rights.
Copyright is "the right not to do specific acts without permission”
Sumiki
In simple terms, copyright is the right not to have one's copyrighted work "do specific acts without
permission".
Konaka
Such as, it can't be copied without permission, or remade without permission.
Sumiki
Japan has a 'non-formality' system, which means that a copyright is automatically granted the moment a work is
created. Simply put, there is no need to register or go through any other procedures to obtain a copyright.
Konaka
Even pictures drawn by elementary school children?
Daiin
And reports written by students?
Sumiki
Yes.
Point
When a copyrighted work is created, a copyright is automatically granted (Article 17(2)).
In a broad sense, there are two types of copyrights: "moral rights," which protect the author's commitment to the
copyrighted work, and "copyright (economic rights)", which protect the economic value. The following is an
explanation of what rights are associated with each.
Moral rights
Moral rights cannot be assigned to others and cannot be inherited (Article 59, proviso of Civil Code Article 896).
Therefore, even if a copyright is assigned, the moral rights remain with the author.
Moral rights cease to exist when the author dies. However, the Copyright Act states that even after the author's
death, a person who provides or presents a copyrighted work to the public must not commit any act that infringes
the moral rights of the author (Article 60).
Let us explain what moral rights are.
Publication Right (Article 18)
The publication right is, as the name implies, the right to decide how the author of an unpublished copyrighted
work will make it public. The author of a derivative work may not publish the derivative work without the consent
of the author of the original work.
Whether to make it public or not.
When will it be made public?
In what form of publication (publication as a book, broadcast, screening, exhibition, public transmission,
etc.)?
Konaka
Do I need the student's consent to submit their painting to a city competition?
Sumiki
Of course, you must obtain the student's consent. If the student only submitted the painting to the teacher as
homework, it does not meet the definition of "published". Since you are publishing it to third parties, you
need the author's consent. There is also the issue of exhibition rights, as such art competitions usually
involve exhibiting the paintings somewhere.
Konaka
I see, I will be careful.
Attribution Right (Article 19)
The attribution right, as the name implies, is the right to determine the name to be displayed as the author when
the copyrighted work is offered or presented to the public.
Whether to display a name or not.
If displayed, whether it is your real name or an alias (pen name, artist's name, etc.).
In the case of derivative works, both the author of the original work (the second sentence of Article 19(1)) and
the author of the derivative work have the attribution right. There are certain limitations on the attribution
right and the following cases do not constitute infringement:
When using a copyrighted work, the user may indicate the name already indicated in the copyrighted work. If
the author's special intention requires a different name to be indicated, the user must follow the intention
(Article 19(2)).
If it is difficult to indicate the name and there is no risk of harm to the interest of the author in claiming
to be the author, the name need not be indicated as long as it does not violate fair practice (Article 19(3)).
For example, when background music is played in a hotel lobby, there is no need to announce who the composer is,
every single time.
Integrity Right (Article 20)
Sumiki
The integrity right is the right not to have the content or the title of the author's copyrighted work "altered
(modified, mutilated, etc.)" against the author's intention without permission.
Konaka
Can you crop a photo and use it, or change the text etc ... ?
Sumiki
Yes. Please note that changing "," to ";" deleting a line break, and changing paragraph breaks or changing the
wording for consistency may also infringe the integrity right.
Daiin
Well, if something like that is wrong, it should be fixed. It's common for student theses to have
inconsistencies in terminology.
Sumiki
It is only with the author's consent that you can correct such inconsistencies. In other words, if the author
corrects the inconsistencies, they may be more careful about it in the future. Then there is no infringement.
Daiin
That's right.
Memo
Tokyo District Court, March 26, 1999, HANREI JIHO No. 1694, p. 142 [Dolphin Blue Case].
Memo
Tokyo High Court, December 19, 1991, HANREI JIHO No. 1422, p. 123 [Hosei University Prize Essay Case].
However, alterations are permitted in the following cases (Article 20(2)):
If the use of a work is permitted by application of the following provisions: publication in textbooks
(Article 33(1) and (4)), publication in substitute materials for textbooks (Article 33-2(1)), reproduction for
the preparation of expanded textbooks (Article 33-3(1)), and broadcasting of school educational programs
(Article 34(1)), the use of a work is unavoidable for school education (Article 33-2(1)).
Alteration due to extension, reconstruction, repair, or redecoration of buildings.
Program version upgrades and other modifications.
Other modifications that are deemed unavoidable in light of the nature of the work and the purpose and manner
of its use.
An example of (1) is converting difficult Kanji into Hiragana so that they are easier to read for younger
students.
Regarding (4), due to the performance of the printing press, it may not be possible to reproduce the exact colors
in the same way as the original, or when a singer may not be able to sing the original melody as it was sung
because of the abilities of the singer.
It is difficult to determine the specific extent to which a work is "unavoidable. " If you are not sure, you
should check with the author.
Point
There are three moral rights: (a) the publication right, (b) the attribution right, and (c) the integrity right!
Memo
"The exploitation of a work in a way that is prejudicial to the honor or reputation of the author" is deemed an
infringement of the author's moral rights (Article 113(11)). Although not strictly defined as a right, this
provision is sometimes called the "honor and reputation right" as a fourth right.
Copyrights (Economic rights)
Copyrights as economic rights include the following:
Memo
Since it is difficult for a copyright owner to trace a user's act of perceiving or enjoyment of a work, such as
by viewing, listening to, or reading a work, these are not subject to copyright (see Kaoru Okamoto, The Concept of Copyright, Iwanami Shinsho, 2003, p. 160).
Reproduction Right (Article 21).
Stage Performance Right and Musical Performance Right (Article 22).
On-Screen Presentation Right (Article 22-2).
Public Transmission Right, Right of Making Transmittable, and Public Communication Right (Article 23).
Recitation Right (Article 24).
Exhibition Right (Article 25).
Distribution Right (Article 26).
Transfer Right (Article 26-2).
Rent Out Right (Article 26-3).
Translation and Adaptation Rights etc. (Article 27).
Rights of the Original Author in Connection with the Exploitation of Derivative Works (Article 28).
Konaka
There are a lot of different rights.
Sumiki
Yes. Some people may find it a little difficult. Copyright is sometimes called a "bundle of rights". First of all, it is good to understand that there are two major rights.
Konaka
Only two!
Sumiki
There are two fundamental rights. The first is (1) the right to copy copyrighted works. The other is (2) the right to communicate the
copyrighted work to the public.
Daiin
Hmmm. Maybe I can remember that.
Sumiki
(1) The "right to copy" is like a prerequisite for (2) the "right to communicate the copyrighted work to the
public", because the more copies that are created, the more opportunities for communicating to the public. For (2), "the right to communicate to the public," the number of rights has increased as the means of
communicating publicly have become more diverse due to technological advances. We can communicate to the
people in front of us via "stage performances," "musical performances," "recitations," and "exhibitions." As
technology advances and copyrighted works can be fixed in some form, they can be conveyed to people far away.
These include "transfer," "rent out," and "distribution." Furthermore, "public transmission" and "making
transmittable" are used to convey copyrighted works to people far away, even if they are not in a tangible form.
Konaka
How should we understand an adaptation?
Sumiki
Adaptation is the addition of new creative elements to a preexisting work. So, please understand that it is a
sort of (1) the "right to copy".
Memo
Taku Inoue, Latest Copyright Introduction by SNS, Seibundo-Shinkosha, 2022, p. 53,
explains that there are many copyright rights by comparing them to grapes.
As explained in Section 04 "What is Copyright?", a reproduction right is "the right not to be reproduced without
permission". Copyright as an economic right can be transferred or inherited (Article 61(1)).
For example, Masamoto Nasu, author of the Zukkoke Sannin-Gumi (The funny trio) series,
reportedly transferred (bequeathed) the copyrights of all his works to a literary organization in his will.
"Adaptation" is a term unique to the Copyright Act, but it means the act of creating a derivative work by adapting
it or making it into a film.
Memo
The act of creating a derivative work, including translation, arrangement, or transformation for the sake of
convenience, is sometimes called an "adaptation".
The terms "public transmission right" and "right to make transmittable" may also be unfamiliar to you. The public
transmission right is the right to transmit a copyrighted work to the public (to an unspecified or specified
number of persons). For example, among public transmissions, automatic public transmission means putting the
copyrighted work on a website for a large number of people to view, or posting the copyrighted work on a social
networking service for a large number of people to see. Making transmittable means uploading a copyrighted work to
a server, etc. to make it available for automatic public transmission, regardless of whether it has been
transmitted or not.
Memo
Article 23(1) brackets.
Konaka
What makes "public communication" different from "public transmission"?
Sumiki
To use a simple example, a broadcaster broadcasting a TV program is a "public transmission," and a TV program
shown on a TV set up in a cafeteria or other location for customers to watch is a "public communication".
Konaka
I see, so you are saying that it is a device that can receive and watch something that has already been publicly
transmitted.
Sumiki
By the way, the use of an ordinary household receiver to broadcast a copyrighted work does not constitute an
infringement of the public communication right, even if it is for profit or a fee.
Daiin
I haven't made any public communications.
Sumiki
No, there is a possibility that Dr. Daiin may do this. For example, if you show a website in class and show
actions such as "click here to view this", this is a public communication.
Daiin
I didn't know that! I didn't know that such an act was subject to copyright too.
Memo
The second sentence of Article 38(3).
Point
Copyright is the right not to do specific acts without permission.
Neighboring rights
Neighboring rights are granted to those who "convey" copyrighted works (Article 89). Like copyrights, these rights
are automatically granted upon performance, sound fixation, broadcasting, or wire broadcasting, and do not require
any registration (Articles 89(5) and 101(1)).
Point
Neighboring rights protect those who play an important role in the conveyance of copyrighted works.
The following are the owners of neighboring rights.
Please see the texts of CRIC and other sources to find out what rights you have for each of them.
Performers: singers, actors, dancers, etc. who perform copyrighted works, etc.
Record producer: a person who first fixed (recorded) the sound (e.g., a record company).
Broadcaster: a person who engages in broadcasting as a business (TV broadcaster, radio broadcaster, etc.).
Cable broadcasting operator: a person who engages in cable broadcasting as a business (cable TV, cable music
broadcasting station, etc.).
Konaka
Perhaps elementary school students imitating their idols and dancing are performers?
Sumiki
Yes. Permission is required if the dance is to be recorded or published on a website.
Daiin
Does the record producer's "fixing the sound" apply to me recording my dog's barking on my phone?
Sumiki
Applicable. This fixed "sound" does not have to be a copyrighted work.
Daiin
I'm a record producer too!
Protection Term
A copyright does not last forever but has a fixed protection term.
Copyright
70 years after the author's death from the time of the creation of the copyrighted work (Article 51).
For copyrighted works under an unknown name, an unusual name, or a collective name, and cinematographic works,
70 years from the time of publication of the copyrighted work (Articles 52(1), 53(1), 54(1)).
Neighboring rights
Performances are 70 years from the time of performance (Articles 101(1)(i) and 101(2)(i)).
A record is from the time the sound is fixed (recorded) to 70 years after publication (Article 101(2)(ii)).
Broadcasting and cable broadcasting is 50 years from the time of broadcast (Article 101(2)(iii) and (iv)).
Column
Wartime extensions
As for the copyright protection term, the rules add the protection term for copyrights that were not protected
during World War II, and for which the Allied nations and Allied nationals had copyrighted in Japan on December 7,
1941 (the day before the war began), and for which copyrights were acquired from December 8, 1941 (the day Japan
entered the war) to the day before the date the peace treaty came into effect for the Allied nations concerned
(e.g., April 27, 1952, for the United States). For example, in the case of the United States, the copyright was
acquired on April 27, 1952).
Daiin
Oh, I know this one ... the protection term used to be 50 years and now with the TPP it's 70!
Sumiki
That's right ...
Konaka
My grandfather passed away about 10 years ago, so if there are any copyrighted works by him, they will be
protected for another 60 years. I wonder if I'll still be alive ...
Sumiki
Well, after 70 years, the grandchildren may not be alive, and more often than not, you may not know who the
copyright owner is.
Konaka
What if I want to get permission but can't find the copyright owner?
Sumiki
There is a system that can be used legally instead of having to pay compensation, based on a ruling from the
Commissioner of Cultural Affairs.
Konaka
Wait, the Commissioner of Cultural Affairs ...
Sumiki
Of course, there is a procedure, so we're not going to go directly to the Commissioner. I will explain this in
detail in Chapter 4.
Word
TPP (Trans-Pacific Partnership Agreement)
Abbreviation for the Trans-Pacific Partnership Agreement, an economic partnership agreement signed on February
4, 2016.
Memo
There is a caveat to Dr. Konaka's grandfather's story. The end of the protection term is counted from
January 1 of the year following the year of the author's death, not from the date of the author's death (Article
57). Therefore, if the grandfather died on May 1, 2012, the protection term is counted from January 1, 2013,
which means that the protection term will expire 70 years later, on December 31, 2082.
Point
The protection term is basically from the time of the creation of the copyrighted work to 70 years after the
author's death.
Public Domain
Public domain means public ownership. It can be freely used by anyone without the permission of the copyright
owner. The following fall under this category.
Memo
To be precise, once in the public domain, anyone is free to perform acts that were the subject of copyright as
long as they do not infringe on the moral interests of the author (Supreme Court, January 20, 1984, HANREI JIHO
No. 1107, p. 127 [Ganshinkei Case]).
The protection term for moral rights after death is not limited and theoretically lasts forever. Therefore,
copyrighted works that have entered the public domain 70 years after the author's death are also theoretically
protected.
However, claims regarding moral rights after the author's death can only be made by the deceased author's
"spouse, children, parents, grandchildren, grandparents, or siblings", in other words, up to the second degree
of kinship (Article 116(1)). Therefore, if these persons die, there will be no claimant, meaning the end of the
protection term for moral rights after the author's death.
See Nobuhiro Nakayama, Copyright Law, 4th ed., Yuhikaku, 2023, p. 672.
Copyrighted works whose protection term has expired.
Copyrighted works for which the copyright owner has waived their rights.
The copyright owner is dead and there are no heirs (Article 62(1)(i)).
A derivative work based on a public domain work is copyrighted from the time the derivative work is created. Note
that even the derivative work is not in the public domain.
Konaka
It's copyright "free".
Sumiki
The term "copyright free" is a bit of a dangerous term. Many people understand that "copyright free = no
copyright", but this is not the case.
Konaka
No?
Sumiki
Even if it says "copyright free", the rights may not be waived. In that case, it is not in the public domain.
Daiin
Is it okay to use anything publicly available on the Internet without permission?
Sumiki
No, no. First, let's check the license requirements.
License
A license is permission given by the author or copyright owner to the user, saying, "You may use it in this way".
It may be granted individually upon request from the user, or it may be presented in advance by the rights owner.
When using the copyrighted works of others, be sure to check the terms of use, license, or license agreement to
see if there is a license, and if so, what it entails.
Check the Terms of Use
One of the illustrations we have seen recently in various places is by "Irasutoya".
If you go to the website of "Irasutoya", you will find the "Terms of Use" page.
The materials distributed on this site may be used free of charge by individuals or corporations, commercial or
non-commercial, as long as they are within the scope of the terms of use.
Do not think, 'Oh well, I get to use it for free!'. You should not be reassured that you can use the service for
free. You need to make sure that you are within the terms of use. Please read the FAQs carefully for detailed
instructions on how to use the site.
Particular attention should be paid to the fact that it states that a fee will be charged for the use of 21 or
more illustrations in a single production for commercial use.
Sites that provide such illustration materials and photo materials often have terms and conditions of use written
in them such as "About Use," "Terms of Use," and "License," so be sure to check them carefully before using them.
Google Maps, which you may be familiar with, also requires credit. Please be aware
that removing the credit already displayed may constitute a breach of contract or an infringement of rights.
One of the most famous licenses is the Creative Commons License, but because the name is long, it is sometimes
abbreviated to "CC". CC is used around the world as a tool for authors who publish their works to express their
willingness to say, "You are free to use my work as long as you abide by these terms of use".
This material is also published under "CC BY 4.0" (this symbol is marked in the footer).
[Creative Commons (CC BY 4.0)]
This is called "attribution," and as long as "the credit of the original author (name, title of the work, etc.) is
indicated", modification and commercial use are allowed.
Please note that sometimes there are people who mistakenly think that because it has CC indicated, they are free
to use it, but credit is required even for BY.
In CC, BY must be added. Other conditions can be combined with the indications as shown in the [Creative Commons
example] below to provide the conditions desired by the author.
[Creative Commons example]
Display
Meaning
Summary
SA
Share Alike
If you modify the work, you must distribute it under the same CC license as the original.
ND
No Derivatives
No derivative work is permitted.
NC
Non-Commercial
Must be non-commercial.
For example, CC-BY-ND-NC means that you can use it as long as it is "credited, no derivative work is allowed,
non-commercial". There are a total of six types.
There is also CC0, which indicates a waiver of rights. Works marked with CC0 are free to use.
In the Tokyo District Court, October 12, 2021 (2021 (wa) 5285) [Photo on Flickr Case], the court ruled that the
defendant's use of a photo by the plaintiff (photographer) posted on Flickr under a Creative Commons License
(BY-SA) on his website without giving credit to the author constituted an infringement of the public
transmission right and the attribution right.
Point
Be sure to check the license!
Konaka
Even if you don't use CC, there are quite a few sites that require "credit" in their terms of use.
Sumiki
In that case, you must use the copyrighted work by properly indicating the name of the work and the name of the
author.
Daiin
Even if there are no terms of use or anything, if it's on the Internet, you're allowed to use it, right?
Sumiki
No. If nothing is written, it basically means that permission is required for use. Just because it is published
on the Internet does not mean that you are free to use it.
Limitation of rights
As explained in Section 01 "What is the Copyright Act?", the Copyright Act aims to develop culture by considering
not only the protection of authors' rights but also the "fair exploitation" of copyrighted works.
To promote "fair exploitation", the Copyright Act stipulates situations in which copyrighted works may be used
without the permission of the copyright owner, and these are called "limitations of rights". These provisions limit the rights of copyright owners and define the scope of fair exploitation.
Memo
Note that the limitation of rights shall not be construed as affecting moral rights (Article 50), so
consideration must be given to moral rights.
There are many limitations of rights, but the following are a few that may be relevant to you, the reader of this
material. If any of these apply to you, you may use the material without the permission of the copyright owner.
Reproduction for private use (Article 30)
It is OK to make your copies only for your use or for use within your home or another similarly limited area.
The voyeurism of movies in theaters and other places is not allowed, even if you are the only one watching the
movie (Article 4(1) of the Law for the Prevention of Voyeurism of Films).
Downloading illegally uploaded copyrighted material knowing that the material is an infringement of copyright
is also not allowed (Article 30(1)(iii)).
Konaka
Downloading a favorite image from a website and using it as wallpaper for your phone is a reproduction for
private use, right?
Sumiki
That is correct. But uploading the image to a social networking site is an infringement of the public
transmission right since Article 30 only allows reproduction.
Daiin
What about handing out copies of newspaper articles at staff meetings?
Sumiki
Such a meeting is for business purposes, so it is not private. It is not a reproduction for private use.
Konaka
What if it was a neighborhood association?
Sumiki
It is also hard to describe such gatherings as "within the family" or "within a similar limited range", so it
does not apply to this group.
Daiin
Well, there was a book scan service case or something like that ...
Sumiki
In that case, a person who wanted to digitize a purchased paper book hired a service provider to scan it, but
the person who wanted to use the copy had to make the copy themselves to be covered by Article 30.
Konaka
Private reproduction does not mean you can reproduce too widely ...
Memo
Tokyo District Court, July 22, 1977, Mutaireishu 9, 2, 534.
Memo
Tokyo District Court, November 8, 2022 (2022 (wa) 2229) held that "for the scope of use of a work to be
considered 'within the limited scope of other similar uses', it is necessary to have at least a close and
closed relationship to the extent that it is equivalent to a family".
Memo
Intellectual Property High Court, October 22, 2014, HANREI JIHO No. 2246, p. 92 [Book Scan Service Provider
Case].
Use of Incidental Works (Article 30-2)
It is OK for a copyrighted work to appear as a minor part of an accompanying photograph or video when it is
taken.
Public transmission of incidentally captured photos and videos is OK within a legitimate scope.
But not if it unreasonably prejudices the interests of the copyright owner.
Reproduction in libraries, etc. (Article 31)
Libraries may reproduce works of library materials as a not-for-profit enterprise in the following cases:
When one copy of a part of a published work is provided per person upon
request of the user.
When necessary for the preservation of library materials.
When providing copies of out-of-print materials at the request of other libraries, etc.
Memo
As a general rule, "a portion" is understood to mean "up to half" of a work. For the operation of the National
Diet Library, please visit Information about Copyright of the National Diet Library.
In addition, under the 2021 amendment to the Copyright Act, the provision of copies of materials for publicity
by the state, etc., and other works specified by Cabinet Order as having special circumstances in which the
provision of copies of the entire work is deemed not to unreasonably prejudice the interests of the copyright
owner is covered in its entirety (Article 31(1)(i), bracketed).
Publication in textbooks, etc. (Article 33)
May be published in textbooks to the extent necessary for school education.
Translation, arrangement, transformation, and adaptation OK for inclusion in textbooks.
Requires notification and compensation to copyright owners.
Memo
Changes in type or terminology or other alterations that are unavoidable for school education (Article 20
(2)(i)) do not constitute an infringement of the integrity right.
Reproduction, etc. as examination questions (Article 36)
Reproduction and public transmission (excluding broadcasting and cable broadcasting) of works that have
already been published as examination or examination questions to the extent necessary for the examination.
OK for examinations done in an online format.
However, if it would unreasonably prejudice the interests of the copyright owner, it is not acceptable.
Compensation must be paid when used for commercial purposes such as paid examinations, employment
examinations, etc.
When publishing past exam questions on the web or distributing them at open campuses, permission from the
copyright owner is required since Article 36 is not applicable.
Memo
This provision was established because it is not appropriate to obtain permission from the copyright owner in
advance due to the nature of examinations.
Memo
Although modification of questions that are necessary due to the nature of the question (e.g.,
fill-in-the-blanks questions) raises issues concerning the integrity right, modification is permissible to the
extent necessary as an unavoidable modification (Article 20(2)(iv)) (see Tatsuhiro Ueno, Copyright Guide for Educators and Researchers, Yuhikaku, 2021, p. 148, and see also Nobuhiro Nakayama, Copyright Law, 4th ed.,
Yuhikaku, 2023, p. 441).
Performances, etc. not for profit (Article 38)
Public stage performances, musical performances, on-screen presentations, or recitations of a published work
are OK if they are not for profit, if no fee is charged by the audience, and if no compensation is paid to the
performers.
It is OK to lend copies of published works, such as CDs, when not for profit and when no fee is charged by the
lender.
Point
Limitations of rights seek to promote fair exploitation by limiting the rights of authors.
The following two are particularly useful limitations of rights in the classroom and are discussed in detail in
Chapter 2.
Citation (Article 32(1)).
Reproduction, etc. in educational institutions (Article 35).
Penal Provisions
We have explained various rules that you should comply with, but if you break those rules and the criminal court
determines that you have willfully infringed copyright, the criminal penalty is imprisonment for not more than 10
years or a fine of not more than 10 million yen, or both (Article 119(1)).
Konaka
It's still a crime to break the law ...
Daiin
But copyright is a crime requiring a complaint from the victim for prosecution, right? You can't be guilty
of a crime if no one submits a complaint, right?
Sumiki
The reason why the Copyright Act has this system is that there is no need to prosecute if the author or
copyright owner thinks it's okay. However, just because you are not prosecuted does not mean you can do it.
It is still a violation of the law. As long as you are breaking the law, you never know when you might be
prosecuted.
The Copyright Act was amended in 2018 to make it an offense prosecutable without a complaint from a victim if it
meets all of the following requirements (Article 123(2)):
The purpose of obtaining compensation or the purpose of harming the interests of the right owner.
Transferring, publicly transmitting, or reproducing for such purposes, in its original form, a copyrighted
work that is offered or presented to the public for a fee (paid copyrighted work, etc.).
Unjust harm is caused to the interests of right owners who are expected to gain from the provision or
presentation of paid copyrighted works, etc.
Specifically, selling pirated copies of manga, movies, anime, etc., or publishing them on the internet can be a
criminal offense even without a complaint from the rights owner.
On the other hand, derivative works such as fanzine (dōjinshi) sold at Comiket and other events remains a crime
prosecutable upon a complaint from the victim.
