Legislation and enforcement

Relevant legislation

What is the relevant legislation?

Relevant legislation includes:

  • the Copyright Act (Act No. 48 of 1970);
  • the Act on Registration of Program Works (Act No. 65 of 1986);
  • the Act on Management Business of Copyright and Neighbouring Rights (Act No. 131 of 2000);
  • the Intellectual Property Basic Act (Act No. 122 of 2002);
  • the Act for Improvement of Creation, Protection and Utilisation of Contents (Act No. 81 of 2004);
  • the National Diet Library Act (Act No. 5 of 1948); and
  • relevant regulations relating to these statutes.
Enforcement authorities

Who enforces it?

Copyright-related legislation is enforced by the district courts, the Intellectual Property High Court (for civil cases), other high courts (for criminal cases and civil cases having jurisdiction other than the Tokyo High Court) and the Supreme Court of Japan. 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.

Online and digital regulation

Are there any specific provisions of your copyright laws that address the digital exploitation of works? Are there separate statutory provisions that do so?

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

  • rights of public transmission (article 23);
  • compensation for private sound and visual recording (article 30, section 2);
  • copying by the National Diet Library for the collection of internet material (article 42-2);
  • ephemeral reproduction for maintenance or repairs on reproducing machines with built-in memory (article 47-4); and
  • copying for information analysis (article 47-7).
Extraterritorial application

Do your copyright laws have extraterritorial application to deal with foreign-owned or foreign-operated websites that infringe copyright?

While there is no specific provision addressing extraterritorial application to deal with foreign-owned or foreign-operated websites, protected works (such as works of Japanese nationals, works first published in this country (including those first published outside Japan but subsequently published in Japan within 30 days thereof) and works that Japan has the obligation to grant protection to under international treaties) are protected under the Copyright Act. If the infringed work is protected in this way, then the Act will generally apply to a foreign-owned or operated website that infringes copyright; however, there is some controversy in relation to extraterritorial application. Some guidance is provided by judicial precedents accepting application of the Copyright Act of Japan, in accordance with article 5, section 2 of the Berne Convention for the Protection of Literary and Artistic Works:

The enjoyment and exercise of these rights shall not be subject to any formality; such enjoyment and such exercise shall be independent of the existence of protection in the country of origin of the work. Consequently, apart from the provisions of this Convention, the extent of protection, as well as the means of redress afforded to the author to protect his or her rights, shall be governed exclusively by the laws of the country where protection is claimed.

Agency

Is there a centralised copyright agency? What does this agency do?

The Agency of Cultural Affairs (ACA) is the primary agency for handling copyright-related issues. The ACA registers copyrighted works - although registration is not mandatory in Japan - with the exception of computer programs, which are registered at the Software Information Centre (SOFTIC).

Subject matter and scope of copyright

Protectable works

What types of works may be protected by copyright?

Works in which thoughts or sentiments are expressed in a creative way, and that fall within the literary, scientific, artistic or musical domains, are copyrightable. The following are all copyrightable:

  • 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 diagrammatic works of a scientific nature, such as drawings, charts and models;
  • cinematographic works;
  • photographic works; and
  • computer programs.
Rights covered

What types of rights are covered by copyright?

Rights of reproduction, performance, screen presentation, public transmission, recitation, exhibition, distribution, ownership transfer, rental, translation and adaptation are covered by copyright.

Excluded works

What may not be protected by copyright?

The following works may not be protected by copyright:

  • the Constitution and other laws and regulations;
  • public notices, instructions, circular notices and the like issued by public entities;
  • judgments, decisions, orders and decrees of courts;
  • rulings and judgments made by government agencies;
  • translations and compilations prepared by public entities;
  • current news reports and miscellaneous reports having the character of mere communication of fact;
  • ideas without any creative expression, even if the idea is unique.

In addition, utility articles, applied arts and designs for utilities in which thoughts or sentiments are not expressed in a creative way and that fall within the literary, scientific, artistic or musical domains may not be protected by copyright.

Fair use and fair dealing

Do the doctrines of ‘fair use’ or ‘fair dealing’ exist, and, if so, what are the standards used in determining whether a particular use is fair?

While there was no general doctrine of ‘fair use’ in Japan prior to the amendment in 2018, there have been some equivalent exemptions provided by the Copyright Act, such as:

  • quoting from and exploiting a work already made public fairly and to the extent justified by the purpose of the quotations;
  • private use, to a limited extent;
  • consequent copy of copyrighted work, to a limited extent;
  • use of copyrighted work for consideration before licence, to a limited extent;
  • test use of publicised work, to a limited extent;
  • reproduction in libraries;
  • reproduction in school textbooks, schools and other educational institutions;
  • use for those with disabilities; and
  • reproduction for judicial proceedings.

In addition to those exemptions, the amendment in 2018 introduced the following new exemptions:

  • certain actions that are usually considered not to harm copyright owners’ interests (articles 30-4 and 47-4); and
  • certain actions that may cause only minor harm to copyright owners (article 47-5).

The amendment in 2018 aims to extend the scope of rights restriction provisions to balance the fair use of copyrighted works and the proper protection of copyright to correspond with the move towards digitisation and networking.

Article 30-4 of the Copyright Act permits the free use of copyrighted works to the extent considered necessary where the intended use of such works is not the enjoyment of the ideas or emotions expressed therein. In such circumstances, the works’ use would usually not impair the copyright owner’s interests. Therefore, these circumstances have been added to the exclusive list of rights restriction provisions. In addition to the general framework for determining whether a certain unlicensed use is permitted, article 30-4 states that the unlicensed use of copyrighted works is permitted where it is required to:

  • test the development of technology for the use of copyrighted works or similar;
  • analyse information; or
  • process information using electronic computers without human recognition.

Article 47-4 permits the use of copyrighted works without the copyright owner’s authorisation to the extent necessary to ensure the smooth or efficient use of the copyrighted works in computers or to maintain or restore their state of use. As with article 30-4, article 47-4 provides a list of circumstances in which the use of works would usually not impair the copyright owner’s interests. article 47-4 provides some specific applicable circumstances and the general framework for determining whether a certain unlicensed use is permitted. As a consequence, creating a cache for speeding up information processing through a network and the temporary copying of data to media from a portable audio player during its exchange to another party can be performed without the copyright owner’s authorisation under article 47-4.

Article 47-5 permits the unlicensed use of copyrighted works where the use is minor and forms part of information processing by computers and the provision of the results thereof. Article 47-5 provides circumstances in which the use of works could cause only minor harm to the copyright owner’s interests. Unlike articles 30-4 and 47-4, article 47-5 identifies only specific applicable circumstances where a person searches for or analyses information and provides the results thereof, although the government can add certain circumstances to this category by a Cabinet order to meet future needs. Notably, under article 47-5, the extent of the use must be minor. For example, locating a certain book using specific keywords and displaying a part thereof with the keywords can be done without the copyright owner’s authorisation.

Architectural works

Are architectural works protected by copyright? How?

Yes. Architectural works in which thoughts or sentiments are expressed in a creative way and that fall within the literary, scientific, artistic or musical domains are protected by copyright.

Architectural works protected by copyright have the same general rights as copyright (see questions 7 and 13), except the right to maintain integrity. The author of an architectural work is required to accept modification of an architectural work by way of extension, rebuilding, repairing or remodelling. In addition, exploiting of architectural works located permanently in open space shall be permissible except for the (imitative) reproduction of an architectural work and the offering of such reproduction to the public by transfering ownership of it.

Performance rights

Are performance rights covered by copyright? How?

A performer has the moral right to:

  • indicate his or her name and to preserve integrity;
  • make sound or visual recordings;
  • broadcast and to wire-broadcast;
  • make his or her performance transmittable;
  • transfer ownership; and
  • offer his or her performance to the public by rental as neighbouring rights.

In addition, a performer has the right to receive secondary use fees from broadcasting organisations or wire-broadcasting organisations using commercial phonograms incorporating a sound recording of the performance through designated organisations (this right is not deemed to be a neighbouring right).

Neighbouring rights

Are other ‘neighbouring rights’ recognised? How?

Yes. Producers of phonograms, broadcasting organisations and wire-broadcasting organisations all have neighbouring rights.

Moral rights

Are moral rights recognised?

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

Copyright formalities

Notice

Is there a requirement of copyright notice?

No. However, many authors do put copyright notices on their works to help prevent copyright infringement.

What are the consequences for failure to use a copyright notice?

Not applicable.

Deposit

Is there a requirement of copyright deposit?

No. However, there is a similar requirement to deposit a copy of a publication in the National Diet Library in order to maintain the publication as public property for public use and record in accordance with the National Diet Library Act. If a governmental institute publishes a piece of work, then that institute deposits multiple copies to be used for the discussion of national issues and international cooperation.

What are the consequences for failure to make a copyright deposit?

When a publisher fails to make a deposit within 30 days after publishing without reasonable cause, an administrative fine of not more than five times the price of the book may be imposed.

Registration

Is there a system for copyright registration, and, if so, how do you apply for a copyright registration?

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 the work has been registered.

In addition, the author of a work that is made public, anonymously or pseudonymously, may have his or her true name registered with respect to said work, regardless of whether he or she actually owns the copyright therein; the copyright holder of any work, or the publisher of an anonymous or pseudonymous work, may register the 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 register the date of the creation of his or her work within six months of the work’s creation.

In practice, the copyright registration system is used for very limited situations, such as attachment security on musical copyright work in a financial transaction.

Is copyright registration mandatory?

No.

What are the fees to apply for a copyright registration?

The fee for registration of the date of first publication and the date of creation is ¥3,000. The fee to register the true name of a work (including computer software) is ¥9,000. The fee for registration of transfer of copyright is ¥18,000. The fee for registration of transfer of neighbouring rights is ¥9,000. The fee for establishment of the right of publication is ¥30,000. In addition to the above, a registration fee of ¥47,100 per software applies in the case of computer software.

What are the consequences for failure to register a copyrighted work?

The rights holder or author may not assert his or her rights against a third party unless registered.

Ownership and transfer

Eligible owners

Who is the owner of a copyrighted work?

The author of a copyrighted work is its owner. Since copyright may be transferred, the assignee may become the owner of the work; this excludes moral rights, which may not be transferred.

Exemptions to this principle are authorship of a work made by an employee (see question 23) and authorship of a cinematographic work.

Authorship of a cinematographic work shall be attributed to those who, by taking charge of producing, directing, filming, art direction, etc, have creatively contributed to the creation of such 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 a cinematographic work.

Employee and contractor work

May an employer own a copyrighted work made by an employee?

Yes. With the exception of computer programs, the authorship of a work that, on the initiative of a juridical person (such as a company) or other employers, is made by an employee in the course of the performance of his or her duties in connection with the employer’s business and is made public by the employer as a work under its own name, shall be attributed to the employer, unless there are contract or work regulations that provide that the work should be attributed to the employee who created the work. As for computer programs, the authorship of a computer program work that, on the initiative of a juridical person (such as a company) or other employers, is made by an employee in the course of his or her duties in connection with the employer’s business, shall be attributed to the employer unless otherwise stipulated by contract, work regulations or the like at the time of the making of the work.


May a hiring party own a copyrighted work made by an independent contractor?

Yes. Such ownership must be expressly agreed to. Although it is not strictly necessary to have a written agreement, it is customary to have one in order to prevent copyright disputes.

Joint and collective ownership

May a copyrighted work be co-owned?

Yes. A co-holder of a copyright in a work of joint authorship or of any other co-owned copyright may not transfer or pledge his or her share without the consent of the other co-holders.

Transfer of rights

May rights be transferred?

Yes.

Licensing

May rights be licensed?

Yes.

Are there compulsory licences? What are they?

Yes. When, despite reasonable efforts, it is not possible to contact the copyright holder because his or her identity is unknown or for other reasons, then it shall be possible to exploit, under authority of a ruling for compulsory licence issued by the ACA and upon depositing, for the benefit of the copyright holder, compensation of the amount fixed by the Commissioner.

Are licences administered by performing rights societies? How?

Yes. Japanese performing rights societies include the Japanese Society for Rights of Authors, Composers and Publishers (JASRAC), the Japan Writers’ Association, the Writers Guild of Japan, and the Japan Writers Guild.

Owners of copyrighted works may either entrust administration of their copyright to the entity of their 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.

Termination

Is there any provision for the termination of transfers of rights?

No.

Recordal

Can documents evidencing transfers and other transactions be recorded with a government agency?

If the transfer and other transactions are registered, yes. The ACA or SOFTIC requires such documents in order to register the transfer or transaction and to summarise the fact in the registration.

Duration of copyright

Protection start date

When does copyright protection begin?

Copyright protection begins at the time of the creation of the work.

Duration

How long does copyright protection last?

Protection will last 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 (in principle). The copyright in a work that bears the name of a juridical person or other corporate body as its author shall continue to subsist until the end of the 50-year period following the work being made public. The copyright in a cinematographic work shall continue to subsist until the end of the 70-year period following the work being made public; or, if the work was not made public within the 70-year period following its creation, until the end of the 70-year period following the work’s creation. Since the end of December 2018, the protection period has been amended to 70 years, to comply with the Comprehensive and Progressive Agreement for Trans-Pacific Partnership.

Does copyright duration depend on when a particular work was created or published?

Yes. There are special copyright durations, pursuant to the Act on Special Provisions of Duration of Copyright of the Allies, for works created during World War II (this time frame runs from 8 December 1941 to the day before each peace pact).

Renewal

Do terms of copyright have to be renewed? How?

No.

Government extension of protection term

Has your jurisdiction extended the term of copyright protection?

Yes. Protection for 30 years after death was extended to 38 years, and then to 50 years in 1970, in accordance with the Brussels Amendment of the Berne Convention (1948). With respect to cinematographic works, protection for a 50-year period following the copyright work being made public was also extended to 70 years (or, if the work was not made public within the 70-year period following its creation, until the end of the 70-year period following the work’s creation).

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.

Relationship to foreign rights

International conventions

Which international copyright conventions does your country belong to?

Japan belongs to:

  • the Berne Convention for the Protection of Literary and Artistic Works (Paris Act);
  • the Universal Copyright Convention (Paris Act);
  • the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations;
  • the World Intellectual Property Organization Performances and Phonograms Treaty (WPPT);
  • the Agreement on Trade-Related Aspects of Intellectual Property Rights; and
  • the Beijing Treaty on Audiovisual Performances.

What obligations are imposed by your country’s membership of international copyright conventions?

Principles of national treatment in accordance with the Berne Convention for the Protection of Literary and Artistic Works, the Universal Copyright Convention, and the Principle of Reciprocity in accordance with the Berne Convention are imposed.