Japan 2011

Submitted by mkoshiba on Sun, 31/01/2010 - 12:50

Legal background

Copyright legislation	Copyright Act ("CA")
Patent legislation	Patent Act ("PA")
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")
	Civil Code ("CC")
	Penal Code ("PC")
Copyright treaties	Berne Convention	Rome Convention	Berne Appendix	TRIPS	WCT and WPPT	Paris Convention
Other relevant treaties

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
Are works that are not fixed in some material form excluded from copyright?	In part The Copyright Act definition of "cinematographic work" includes those that are "fixed in an object."	CA s2(3)
Has a court or tribunal ever limited the exercise of copyright under competition law, for example by imposing compulsory licensing or regulating royalties charged by dominant rights holders?	No The exercise of copyright is exempted from the Antimonopoly Act.The Antimonopoly Act does not apply to resale price maintenance conduct regarding copyright works.	AL s21, AL s23(4)
Has a court or tribunal ever limited the exercise of copyright pursuant to a bill of rights or similar human rights instrument, for example by preventing copyright from being used to stifle protected speech?	No
Are databases of non-original material excluded from copyright?	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	CA s2(1)x-2, CA s10(1)ⅸ, CA s47-3, PA s2(4)

Freedoms to access and use

By Home Users	Is there any general user right that is based on a set of balancing criteria, such as a "fair use" right?	In part 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)?	In part Provided it is for personal use or family use or other equivalent uses.	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 no longer exist, the copy must be destroyed.	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 family use or other equivalent uses.	CA s30
For Education	May students copy works for private research or study?	Yes Provided it is for personal or home use.	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 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
Online	Are temporary or transient copies, incidental to a lawful use, excepted from copyright?	In part If it is for personal or home use.	CA s30,　CA s47-3
	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?	Yes But there are some instances of private monitoring ISP's, and the Police Department can act on complaints about copyright infringements as part of their "Cyber Crime Project."
By content creators	Is there any protection for consumers who non-commercially remix or mash up copyright works?	No
	May computer software be copied for the purpose of reverse-engineering interoperable software?	No
	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 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 quotations be used for any purpose?	In part 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 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 single 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)
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	CA s13(i)
	Are other governmental works excluded from copyright?	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 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
Is innocent infringement of copyright treated differently by the law?	Yes 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)
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 use of TPMs on copyright works be disclosed to consumers?	No
Are there cases in which the availability of injunctive relief for copyright 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
Have major ISPs resisted requests from copyright owners to pass on allegations that their users have engaged in copyright infringement?	No There is case law involving the “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” in which an ISP has refused to disclose the infringer’s details.	PLLA s3
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?	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, 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

Conclusions

At present, a revision of the Copyright Act is under consideration. One of the changes being considered is the introduction of a Japanese style “fair use” clause. The amendment might be passed by the end of the year, at the earliest.

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