Japan

Legal background

Scope and duration of copyright

Does copyright end immediately after the minimum period mandated by the Berne Convention? No
Cinematographic works are protected for 70 years from when the work was made public or if it has not been made public within the 70 years from its creation, then 70 years following its creation.
CA s54
Has a court or tribunal ever limited the exercise of IP rights under competition law, for example by imposing compulsory licensing or regulating royalties charged by dominant rights holders? No
The exercise of rights relating to copyright, patent, utility models, designs, and trademarks is exempt from the Antimonopoly Act. The Antimonopoly Act does not apply to resale price maintenance conduct regarding certain copyright works (books, magazines, newspapers, records, music tapes and CD’s). Under the Patent Act, the relevant Minister or the Commissioner of the Patent Office may, on application, make a determination in certain circumstances, requiring the granting of a compulsory licence. In practice, however, this issue has been resolved before a determination is made.
AL s21, AL s23(4), PA s83, 93, FTC Order (June 28 2001) and FTC statement of April 15, 2002
Has a court or tribunal ever limited the exercise of IP rights pursuant to a bill of rights or similar human rights instrument, for example by preventing copyright from being used to stifle protected speech? No
There have not been any such cases.
Can databases of non-original material be reproduced without infringing a copyright or sui generis database right? No
CA s12-2
Are rights holders prohibited from excluding user rights under copyright law? In part
There are no provisions in the Copyright Act. However, such prohibitions might be considered to be an abuse of rights under Section 1 of the Civil Code.
CC s1(3)
Is computer software excluded from the scope of patentable subject matter? No
PA s2(4)

Freedoms to access and use

By Home UsersIs there any general user right that is based on a set of balancing criteria, such as a "fair use" right? In part
Provided it is for personal use or use within the household, or other equivalent uses except in cases where the copy was made using a copying machine which is intended for use by the general public, or where the copying was made possible by circumventing technical protection measures.
CA s30
Is time, space and format shifting allowed (such as ripping music from CD to an MP3 player)? In part
Provided it is for personal use or use within the household, or other equivalent uses. However, even in such cases, if the format shifting is done by a third party (e.g. someone paid to do so on behalf of the person) case law indicates that this will be constitute a violation of copyright.
CA s30
Can consumers reproduce copyright material for their own use in the original format, for example for backup purposes? In part
Backup copies can be made of computer programs to avoid loss or damage.Furthermore, except in the case of loss, where the property rights to the copyright work cease to exist.
CA s47-3
Can works be communicated to a limited public (for example, family and friends) without infringing copyright? In part
Except for certain cases listed in section 30, it is permissible for the users of copyright works to copy them for personal use or use within the household, or other equivalent uses.
CA s30
For EducationMay students copy works for private research or study? Yes
Provided it is for personal or home use. In the case of copyright works held by a library, partial copying for research or study purposes is allowed.
CA s30, CA s31
Does any such research and study provision cover distance and online education? In part
However, in the case of educational service providers the Cultural Agency's guideline (setting out the extent to which copying is allowed under Section 35 of the Copyright Act) states that schools and other educational institutions engaged in the provision of distance education using the internet,may broadcast educational materials live during the class without the prior consent of the copyright holder. There is a requirement, however, that the educational materials must be broadcast from a “main place” to a “secondary place”, and not available for all persons to hear/see.
CA s35(2)
May translations of works be made for educational purposes? Yes
CA s35, CA s43(i)
May educators copy works for use in the classroom? In part
Reproduction is permitted if it is not likely to unreasonably prejudice the interests of the copyright holder in light of the type and the usage of the work, the volume of copies and the manner of reproduction.
CA s35
OnlineAre temporary or transient copies, incidental to a lawful use, excepted from copyright? In part
Such copies may be made in the interests of efficient transmission of data.
CA s47-8
Does the law exclude or limit the liability of intermediaries such as ISPs for copyright infringements carried out on their network? In part
An ISP may only be liable where the ISP knew that the information constituted an infringement of another’s rights, and did not delete the information even though it was technically possible to do so.
PLLA s3
Is Internet access free of ISP filtering or monitoring for potential copyright-infringements? In part
But there are some instances of private monitoring of ISP's, and the Police Department can act on complaints about copyright infringements as part of their "Cyber Crime Project." In addition, mobile phone providers are required by law to provide filtering service for content harmful to minors under the age of 18 (Act on Providing an Environment for Minors to Use the Internet Safely, section 17).
By content creatorsIs there any protection for consumers who non-commercially remix or mash up copyright works? No
May computer software be reproduced or transformed for the purpose of reverse-engineering interoperable software? No
Consideration is being given to making reverse-engineering legal but there has not yet been any amendment made to the current law.
Is the incidental inclusion of a work in other material permitted? In part
It is possible to include an artistic work installed in an open place, or an architectural work.
CA s46
Is there are copyright exception for parody or satire? No
CA s32(1) precedent
By the pressIs there a copyright exception for the news of the day? Yes
CA s41
May copyright material be reproduced for the purposes of review and criticism? In part
Reproduction of copyright works already made public is allowed, provided that it is compatible with fair practice to the extent justified by the purpose and there is a clear acknowledgement.
CA s32, s48
May quotations be used for any purpose? In part
Quoting from works already made public is allowed, provided that the quotation is compatible with fair practice to the extent justified by the purpose of the quotation, e.g. news reporting, critique or research, and there is a clear acknowledgement.
CA s32, s48
By LibrariesMay libraries copy works if they cannot reasonably be obtained commercially? In part
It is permissible where the copying falls within the non-profit making activities of the library, and where the copying is done, in response to the request of other libraries etc, because the work is not easily obtained due to it being out of print or other similar reasons.
CA s31(1)(iii)
May librarians copy works for users for the purpose of research or study? In part
Libraries, as part of their non-profit making activities may, for a user, make a one-time, partial copy of a work that has already been made public .
CA s31(1)(i)
Are libraries allowed to make preservation or archive copies of materials in their collections? In part
It is permissible to make copies if it comes within the non-profit making activities of the library and is necessary to preserve library materials.
CA s31(1)(ii)
Can lending libraries operate without incurring public lending rights fees to copyright owners? Yes
Except in the case of cinematographic works which require payment of reasonable compensation to the copyright owner.
By disabled usersIs it permissible to copy or adapt work for the use of those with disabilities? Yes
It is permissible to copy a work in Braille that has already been made public.. It is also permissible for designated persons who engage in activities promoting the welfare of people with aural disabilities and for that sole purpose to make an automatic public transmission of a broadcasted or wire-broadcasted work, in which the oral words of the broadcasted or wire-broadcasted work are converted into written words.
CA s37, CA s37-2
In public affairsAre laws excluded from copyright? Yes
CA s13(i)
Are other governmental works either excluded from copyright, or routinely shared under permissive licences? In part
Public notices, instructions, circular notices and the like issued by organs of the State, local public entities, and incorporated administrative agencies may not be the subject of copyright.
CA s13(ii)(ⅳ)
Are the results of publicly funded research required to be published under an open access licence? No

Freedoms to share and transfer

Do copyright owners have the right to release their works to the public domain, without any limitation on how those works may be used? Yes
CA s61, CA s63
Can public domain works be used without the need for any payment or registration of the use? Yes
Does the law make special provision for the legal use of orphaned works? No
In cases where the copyright owner is unknown, the Head of the Cultural Agency may, in lieu of the copyright owner, make a determination allowing use of the copyright work.
CA s67(1)
Is parallel importation of copyright works permitted? In part
Parallel imports are allowed but in the case of cinematographic works, the permission of the copyright or licence holder must first be obtained before parallel imports from countries which are party to the Berne Treaty may be sold in Japan.
CA s26, CA s113, precedent
Are there national programmes or policies to promote the use, production or dissemination of openly-licensed material such as free and open source software or open educational resources? Yes
The Ministry of Trade and Industry (MITI) has been actively promoting the use of open source software such a Linux, and has also published reports which deal with this topic (e.g . “Survey of Open Source Software Usage: Guideline for Consideration of its Introduction”, 2003 etc ).
Are there national programmes or policies that specify or promote the use of open document formats? No

Administration and enforcement

What is the maximum penalty for copyright infringement for an individual? 10,000,000 yen fine or up to 10 years imprisonment, or both. CA s119
What is the maximum penalty for copyright infringement for a corporation? 300,000,000 yen CA s124
Is innocent infringement of IP treated differently by the law? Yes
Under the Copyright Act penalties for infringement for commercial purposes are different.
CA s119-CA s124
Is the creation or distribution of devices that can circumvent technological protection measures (TPM) permitted, where such devices can be used for legal purposes? No
CA s30(1)(ii), CA s120-2, UCPA s21(2)(iv)
Is the use of such devices by consumers or intermediaries permitted in the legal exercise of user rights? No
CA s30(1)(ii)
Does national copyright or consumer protection law require that the effect of TPMs distributed with copyright works be disclosed to consumers? No
Are there cases in which the availability of injunctive relief for IP infringement is limited by the law on public policy grounds? In part
Under the general law, Article 1 paragraph 3 of the Civil Code provides that “no abuse of rights is permitted.”
CC s1
Does the law protect a user's Internet access from being suspended for alleged copyright infringement, except after a hearing in court? No
Are criminal sanctions limited to cases of large-scale commercial counterfeiting? No
Are damages for copyright infringement limited to the loss sustained, rather than a pre-established or statutory damages award? No
The amount of the loss is calculated according to what the copyright holder would have received if not for the infringing conduct, taking into consideration the actual ability of the copyright holder to sell the copyright works concerned.
CA s114, CA s114-5
Is there provision to penalise the wrongful allegation of copyright infringement? In part
There is a general provision in the Penal Code (s. 172) which provides that a person who submits a false complaint, accusation etc for the purpose of having a punishment or disciplinary action imposed upon another shall be punished by imprisonment with work for not less than 3 months but not more than 10 years.
PC s172
Is there provision to penalise the obstruction of consumers' exercise of user rights? No
Does the patent system allow for pre-grant opposition? Yes
PA s123

Recent or upcoming changes

An amendment to the Copyright Act has been under consideration for some time. One of the changes being considered is the introduction of a Japanese style “fair use” clause. According to media reports, a bill is expected to be introduced into the parliament in March 2012.

Summary of position

In Japan, 40 years have passed since the last substantial revision of the Copyright Act in 1970. The considerable advances in technology during this period had a significant influence on the copyright law regime. Copyright law underwent several amendments not only in order to keep up with international treaties but also in order to establish a copyright regime which provides for suitable protection of copyright works, as well as fair usage. 

 
Recent copyright law amendments have dealt with such issues as facilitating the use of copyright works over the internet, preventing the sale of illegal copyright works, and securing opportunities for people with disabilities.

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