Japan

Sun, 31/01/2010 - 12:50 — mkoshiba

Legal background

Copyright legislation	Copyright Act 1970 ("CA") From http://www.cric.or.jp/cric_e/clj/
Other relevant laws	Act on Prohibition of Private Monopolization and Maintenance of Fair Trade 1947 ("AL")
	Act on the Limitation of Liability for Damages of Specified Telecommunications Service Providers and the Right to Demand Disclosure of Identification Information of the Senders 2001 ("PLLA")
Copyright treaties	Berne Convention	Rome Convention	Berne Appendix	TRIPS	WCT	WPPT
Other relevant treaties

Scope and duration of copyright

Is the period of protection of each type of copyright work limited to the minimum duration 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
Must a work be fixed in some material form before copyright attaches?	NO
Is the exercise of copyright subject to competition law, for example by compulsory licensing or regulation of royalties in the case of copyright holders who misuse their monopoly power?	NO The exercise of copyright is exempted from the Antimonopoly Act.	AL s21
Is the exercise of copyright subject to compliance with a bill of rights or similar human rights instrument, for example by preventing copyright from being used to stifle protected speech?	NO	CA s12-2
Does the compilation of a database of non-original material fall outside the scope of copyright?	NO	CA s12-2
Do exceptions and limitations in national copyright law prevail over contracts purporting to limit or override them?	LIMITED Ｉｔ is generally agreed that the exceptions and limitations in the Copyright Act may not overridden by contract. However, in the case of copying there is disagreement among legal scholars as to whether or not the “ right to maintain the same”) can be overridden by contract..	CA s47-2，CA20(2) (iii)

Freedoms to access and use

By Home Users	Is there a general exception for the fair use of copyright material for any purpose that satisfies a set of balancing criteria?	NO Personal or use within the household is permitted 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)?	YES
	Can consumers reproduce copyright material for their own use in the original format, for example for backup purposes?	LIMITED 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 no longer exist, the copy must be destroyed.	CA s47-2
	Can works be communicated to a limited public (for example, family and friends) without infringing copyright?	LIMITED Copies may be made for personal , or household use, or other equivalent uses within a limited scope.	CA s30
	Does a collective licensing scheme permit the copying or sharing of copyright material by consumers in exchange for a media or equipment levy?	LIMITED Sound or visual recordings on a recording medium used for digital sound and visual recordings by means of a machine possessing functions to make digital sound or visual recordings which are made for personal use are permitted provided a reasonable amount of compensation is paid to the copyright holders concerned..	CA s30(2)
For Education	Is reproduction permitted for the purposes of research or study?	YES Provided it is for personal or home use.	CA s30
	Does any such research and study provision cover distance and online education?	LIMITED 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 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 works be reproduced and published by educational institutions in connection with systematic instructional activities?	LIMITED 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
Online	Is hyperlinking to a Web site allowed without permission of the site's owner?	YES The law does not specifically prohibit this.
	Are temporary or transient copies, incidental to a lawful use, excepted from copyright?	LIMITED If it is for personal or home use.Temporary copies are permissible when made by broadcasting organizations　done by technical means for broadcasting purposes, or when made for maintenance or repair purposes.	CA s44,CA s45,CA s47-2
	Are ISPs protected from liability for infringements by third parties, because the law either does not impose liability upon intermediaries or limits their liability in certain circumstances?	LIMITED ISP are not liable for losses caused by third parties unless it is technically possible to stop the distribution of the information which infringes other's rights to unspecified persons.	PLLA s3
	Do ISPs provide Internet access without conducting filtering or monitoring for potential copyright-infringing material?	YES
	Are the names and personal information of customers who are alleged to have engaged in copyright-infringing behaviour protected from disclosure by their ISPs?	NO Copyright holders may, in certain circumstances, request that the ISP's disclose information about the infringer.	PLLA s4
By content creators	Can copyright works be non-commercially remixed or mashed up into new works?	NO
	May computer software be reverse engineered for the purpose of creating interoperable software?	NO
	Is the incidental inclusion of a work in other material permitted?	NO
	Is there are copyright exception for parody or satire?	NO	CA s32(1) precedent
	Do creators who license their work retain the moral right of attribution?	YES The moral rights of author are considered to be personal and exclusive to the author and cannot be transferred.	CA s59
By the press	Is 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?	YES	CA s32
	May political speeches, speeches in judicial proceedings and/or other public speeches be used for any purpose?	YES	CA s40
	May quotations be used for any purpose?	NO Quoting from work s 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..	CA s32
By Libraries	May libraries copy works that cannot reasonably be obtained commercially?	LIMITED 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(iii)
	May libraries copy works for users for the purpose of research or study?	LIMITED Libraries, as part of their non-profit making activities may,for a user, make a single copy of a work that has already been made public .	CA s31(i)
	Are libraries allowed to make preservation or archive copies of materials in their collections?	LIMITED 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(ii)
	In making permitted copies, are libraries entitled to circumvent technological protection mechanisms (TPMs)?	NO
By disabled users	Is 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 affairs	Are laws excluded from copyright?	YES
	Are other governmental works excluded from copyright?	NO
	Is there a copyright exception for use of material in judicial proceedings?	LIMITED Works deemed necessary for judicial proceedings or for internal use by legislative/administrative organs may be copied, provided that the copying will not unreasonably prejudice the interests of the copyright holder (determined by certain criteria such as type/usage of the work, number of copies ).	CA s42
	Are the results of publicly funded research required to be published under an open access license?	NO

Freedoms to share and transfer

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
Do the penalties for copyright infringement distinguish between personal versus (large-scale) commercial use, other than at the discretion of a judge?	YES	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 purposes that would not infringe copyright?	NO
Is the use of such devices by consumers permitted for any purpose that would not infringe copyright?	NO	CA s30(ii)
Does national copyright or consumer protection law require disclosure to consumers of the existence of TPMs and any potential limitations on the use of TPM-protected material?	YES
Are the operations of copyright collectives subject to public oversight?	YES Organizations established according to the Copyright Intermediaries Business Act come under the jurisdiction of the Cultural Agency, e.g. JASRAC (Japanese Society for Rights of Authors, Composers and Publishers).
Are ISPs independent of copyright owners, to the extent that no law or industry code of conduct requires them to notify their users who are alleged to have committed a copyright infringement online?	NO
Are criminal sanctions limited to cases of large-scale commercial counterfeiting?	NO
Are damages for copyright infringement based on the loss sustained, rather than by a pre-established or statutory damages award?	YES 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
Is there provision to penalise the wrongful allegation of copyright infringement?	NO

Conclusions

The amended Copyright Act came into force on January 1 2010. The main points relating to this amendment are as follows. (1) Knowingly selling pirated copyrightⁱ works over the internet will be deemed an infringement of the copyright holder s rights. (2) Individuals who knowingly, even for personal use, copy music or moving images (e.g. movies, TV dramas) which have been illegally distributed via the internet will be liable for copyright infringement. This has reduced the utility of Japan's private copying levy for consumers.

On the other hand, the scope of institutions which may make recorded audio books for those with visual and aural impairments has been extended to include public libraries, and copying done specifically for persons with intellectual or other impairments will not constitute an infringement of copyright.

This work is licensed under a Attribution Share Alike Creative Commons license

May copyright works be freely offered for commercial rental?	NO The copyright holder’s permission is required.
Does the law permit a work to be released to the public domain before the copyright term expires, without any formality other than an overt act of relinquishment?	YES
Are orphaned works treated differently in the law to other copyright works, for example by allowing them to be compulsorily licenced, limiting remedies, or by releasing them into the public domain?	NO
Is parallel importation permitted?	LIMITED In the case of cinematographic works the permission of the copyright holder must first be obtained before parallel imports from countries which are party to the Berne Treaty may be sold in Japan.	CA s26, precedent
Are there incentives for the use, production and dissemination of free and open source software within copyright law or elsewhere in national law/policy?	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 incentives for the use, production and dissemination of open access material (e.g. textbooks) within copyright law or elsewhere in national law / policy?	NO
Are there specifications or incentives in national law/policy for the use of open document formats?	NO