Copyright infringement and remedies

Infringing acts

What constitutes copyright infringement?

Reproduction, performance, screen presentation, public transmission, recitation, exhibition, distribution, rental, translation or adaptation without the copyright owner’s approval constitute copyright infringement.

Vicarious and contributory liability

Does secondary liability exist for indirect copyright infringement? What actions incur such liability?

Yes. A representative, an agent, an employee or any other worker of a juridical person (such as a company) or a person (individual) who commits copyright infringement in connection with the business of that person shall be jointly or vicariously liable for the infringement under the Copyright Act and civil law, and may have criminal liability in accordance with the Copyright Act.

Available remedies

What remedies are available against a copyright infringer?

Remedies available include injunction, compensation, measures for the restoration of honour and reputation such as a public apology and the collection of unjust enrichment.

Limitation period

Is there a time limit for seeking remedies?

Compensation in accordance with the Civil Code must be sought within three years of the infringement and infringer becoming known, or within 20 years of the infringement.

Monetary damages

Are monetary damages available for copyright infringement?

Yes.

Attorneys’ fees and costs

Can attorneys’ fees and costs be claimed in an action for copyright infringement?

Yes, although it is rare that the amounts awarded in a judgment will cover attorneys’ fees and the costs of an action.

Criminal enforcement

Are there criminal copyright provisions? What are they?

Yes. A person who infringes copyright, right of publication or neighbouring rights (excluding some exemptions provided in the Act) shall be punished by imprisonment with work for a term not exceeding 10 years, a fine of not more than ¥10 million, or both. A person who infringes the author’s moral rights, a person who, for profit-making purposes, causes a machine that has a reproduction function (provided in the article) to be used to reproduce works or performances (eg, automated bulk video copying) or a person who commits an act deemed to constitute copyright infringement shall be punished with penal labour for up to five years, a fine of up to ¥5 million, or both. A person who infringes an author or performer’s moral rights after the author or performer’s death shall be punishable by a fine of up to ¥5 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 any authority, etc.

The authorities may not investigate copyright infringements and bring charges against offenders unless the copyright holders have filed complaint against the authorities, or the following three requirements are met:

  • the alleged offenders intend to financial benefit or to harm the copyright holders;
  • the alleged offenders assign, publicly transmit or duplicate paid copyrighted works in their original language; and
  • the copyright holders’ prospective benefit arising from offering paid copyrighted works is unjustly infringed.

If the preceding requirements are met, the authorities may investigate copyright infringements and bring charges, even if the copyright holders have not filed complaints.

In addition, selling devices to circumvent access control is subject to criminal sanctions.

Online infringement

Are there any specific liabilities, remedies or defences for online copyright infringement?

Yes. When copyright is infringed by information distributed through the internet, a person alleging that his or her copyright has been infringed may request that a telecommunications service provider, such as an internet service provider prevent such infringed information from being transmitted to unspecified persons in practice (under civil laws); and disclose the identification information of the sender pertaining to the infringement, if there is evidence that the copyright was infringed by distribution through the internet, since the identification information of the sender is necessary for the rights holder demanding the above disclosure to exercise his or her right to claim damages, and there is justifiable ground for the rights holder to receive the disclosed identification information of the sender in accordance with the Act on the Limitation of Liability for Damages of Specified Telecommunication Service Providers and the Right to Demand Disclosure of Identification Information of the Senders (Act No. 137 of 2001).

When a telecommunication service provider has received a request to prevent the infringement, the service provider shall be liable for loss incurred from such infringement if:

  • it is technically possible to take measures for preventing such information from being transmitted to unspecified persons;
  • the service provider knew that the infringement was caused by the information distribution through the telecommunications provided by the provider; or
  • the service provider had knowledge of the information distribution by its service or there are reasonable grounds to find that the service provider could know the infringement was caused by information distribution through its service.

On the other hand, if a service provider takes measures to block transmission of information, such provider shall not be liable for any loss incurred by a sender of such information allegedly infringed insofar as measures are taken within the limit necessary for preventing transmission of the infringement to unspecified persons and there is a reasonable ground to believe the infringement, or there is no notice of acceptance of blocking the information from the infringer who receives an enquiry from the service provider within seven days after the above inquiry is made.

Prevention measures

How may copyright infringement be prevented?

Copyright infringement may be prevented in Japan by putting a copyright notice on the work; education; appropriate measures against infringement, such as issuing a warning immediately after infringement is recognised; and legal action against the infringer.

Japanese copyright holders have suffered a number of copyright infringements by individuals and corporations based in foreign countries (eg, counterfeit software and cartoon books being translated and printed without approval); therefore government-level action against countries in which many copyright infringers exist should be a critical factor in helping to prevent future copyright infringement.