Gavin Howe
Japan's copyright law has been criticised for its harsh penalties and restrictions, particularly regarding the downloading of copyrighted material. The country's copyright legislation has undergone several amendments in recent years, with increasing focus on digital limitations and exceptions. This includes the criminalisation of illegal downloading and the operation of leech sites, which has sparked concerns about the balance between protecting intellectual property and preserving public domain content. With the complexity of copyright law and the evolving nature of digital media, it is essential to understand how these laws apply to citing Japanese case law to avoid potential infringement.
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What You'll Learn
Quoting case law
Japanese copyright law has been criticised for being overly harsh and restrictive on consumers, with some arguing that it unduly targets manga and imposes disproportionate penalties for downloading. The law has been amended several times to address new technologies and modes of communication, such as uploading content to servers and accessing content via hyperlinks.
The Japanese Copyright Act recognises the right of authors to make their unpublished works available to the public and grants them moral rights in their works. It also allows for the free performance or exhibition of works as long as the performer is not paid and no admission fee is charged. Additionally, political speeches and government proceedings can be reproduced without restriction, except when the intent is to create an anthology of the author's works. Braille and audio versions of printed materials may also be reproduced for lending, but not for commercial use.
Regarding quotations, Japanese copyright law permits the fair use of quotations as long as they do not exceed what is justified for their purpose. This means that quoting Japanese case law is generally permissible, provided that the quotation is reasonable in length and relevant to the purpose of the quotation. However, it is important to note that the specific application of these laws may vary depending on the context and that other provisions of the Copyright Act, such as those related to licensing and data analysis, may also come into play.
In recent years, there have been several notable cases involving copyright infringement in Japan. For example, in 2020, the Supreme Court of Japan held that the right of attribution was infringed when a Twitter user retweeted a post that included a photograph without the photographer's name. Additionally, in 2022, the Supreme Court ruled on a case between music school operators and the Japanese Society for Rights of Authors, Composers and Publishers (JASRAC), which involved alleged copyright infringement of musical works. These cases highlight the ongoing development and enforcement of copyright law in Japan, including the interpretation of fair use and the protection of authors' rights.
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Public domain and communication
The concept of the "public domain" has evolved over the centuries, from ancient Roman law to the modern-day digital landscape. In the context of copyright law, the term "public domain" refers to creative materials that are not protected by intellectual property laws such as copyright, trademark, or patent. These works are owned by the public, and anyone can use them without obtaining permission or citing the original author. However, it's important to note that while individual works may be in the public domain, collections of these works can be protected by copyright. For example, a book or website that compiles public domain images may be protected by what is known as the "collective works" copyright.
In Japan, copyright law has been a topic of discussion and controversy in recent years. On the one hand, Japan has adapted its laws to address new possibilities and challenges presented by the internet, such as uploading content to servers and accessing content via hyperlinks. This expansion of the right of public transmission has been a significant development. However, critics argue that Japan's copyright law has become increasingly harsh and restrictive, particularly in the manga industry. There have been concerns about excessive attention to copyright infringement and the criminalization of illegal downloading and private copying.
The balance between protecting intellectual property rights and promoting public domain usage is a delicate one. In Japan, certain exceptions and limitations to copyright protection exist. For example, copyrighted materials can be reproduced to the extent necessary for reporting current events, and works can be performed or exhibited freely if no admission fee is charged. Additionally, political speeches, government proceedings, and Braille and audio versions of printed materials may be reproduced for specific purposes. These exceptions contribute to the public domain and facilitate the sharing of information.
However, it's important to note that even when materials are considered "in the public domain," there can still be some use restrictions. The term "copyright-free" is sometimes used to indicate this nuance. The line between what constitutes copyright infringement and what falls within the public domain is not always clear, and it varies across different countries and jurisdictions. As such, it is essential to consider the specific context and applicable laws when discussing the public domain and communication in the context of Japanese case law.
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Criminal penalties
In Japan, any copyright infringement is subject to a criminal penalty. Prosecutors have the discretion to decide whether to bring a case to the criminal courts. A person who infringes a copyright is subject to imprisonment for a term of up to ten years, a fine of up to JPY 10,000,000, or both.
In June 2020, an amendment was made to the Copyright Act, which criminalized the illegal downloading of manga, magazines, and academic texts. This amendment came into effect on January 1, 2021. It is important to note that copying short excerpts and accidental copying from illegal sources are allowed as a compromise. However, operating a "leech site" that provides links to infringing content is punishable by up to 5 years in prison or a fine of 5 million yen.
The Japanese government has been accused of promoting restrictive and harsh copyright policies, particularly in the manga industry. There is concern that the penalties for downloading copyrighted material are disproportionate. For example, in 2012, it was announced that illegally downloading music and movies could be punished by a fine of 2 million yen.
The JASRAC, an umbrella group for copyright organizations, has been pushing for the criminalization of illegal downloading since 2007. Despite opposition from the public, the Agency for Cultural Affairs proposed to ban illegal downloading, and the prohibition came into effect in 2010.
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Leech websites
The term 'leech websites' refers to websites and apps that do not host pirated content themselves but instead post or provide URLs or links to pirate sites. Leech websites aid copyright infringement by pirate sites but did not constitute direct copyright infringement under the previous Japanese Copyright Act. This meant that copyright owners were unable to seek an injunction against leech websites and apps.
To address the proliferation of pirate sites, the 2020 revisions to the Japanese Copyright Act introduced new measures to crack down on leech websites and expand the scope of illegal downloading. The amended Act provides that an act of providing a hyperlink by such “leech websites” constitutes copyright infringement if such websites induce the public to pirated materials or are primarily used for the purpose of exploiting pirated materials by the public. This act is now subject to injunction and criminal penalty. Additionally, the act of operating such “leech websites” and the provision of computer programs having a similar function constitute a criminal offence under the amended Act.
The Japanese Copyright Act has been adapted to the new possibilities that the internet provides, such as uploading content to a server and accessing content via hyperlinks. However, the wider reach of the concept of communication to the public means a big limitation of the reach of the public domain. The Act was also updated in 2009 to allow for digitally focused limitations and exceptions, such as copying on servers of in-copyright works to provide search engine-type services and the use of orphan works.
Japan was a party to the original Berne convention in 1899, so its copyright law is in sync with most international regulations. However, the US has been infamous for exporting bad copyright practices to other countries due to aggressive lobbying by its entertainment industry. These practices include banning the circumvention of technological protection measures and forcing online service providers to censor copyrighted content and terminate copyright infringers.
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Circumventing technological protection measures
In Japan, copyright law has been criticised for being increasingly harsh and restrictive on consumers, with some arguing that there are disproportionate penalties for downloading copyrighted material. In 2009, an amendment made it illegal to download copyrighted material uploaded without the author's permission. This was followed by another amendment in 2020, which criminalised the illegal downloading of manga, magazines, and academic texts.
In this context, the circumvention of technological protection measures is a relevant concern. The Digital Millennium Copyright Act (DMCA) prohibits circumventing technological measures that "effectively control access" to copyrighted works. These measures include passwords or encryption that prevent unauthorised viewing or listening. The DMCA also contains antitrafficking provisions that ban the manufacture, import, or trafficking of technologies designed to circumvent these protections.
However, it's important to note that circumventing copy control may not violate the DMCA, as its permissibility is judged separately under the Copyright Act. Additionally, there are exemptions to the prohibition on circumventing copyright protection systems, such as the one granted to the Internet Archive, which was allowed to circumvent access controls to preserve computer programs and video games on obsolete media.
The legislative process should aim to create meaningful exemptions for consumers who lack the technological expertise to create their own circumvention tools. This can be achieved by allowing exemptions for both the acts and tools necessary to facilitate permitted circumvention. Furthermore, any circumvention ban should include a ""no mandate" provision to prevent overzealous copyright owners from stifling technological innovation.
While Japan-specific information on circumventing technological protection measures is limited, it's reasonable to assume that similar considerations and provisions are in place to balance copyright protection with legitimate access to information.
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Frequently asked questions
No, citing Japanese case law is not considered copyright infringement. Works may be quoted freely, provided that the quotation does not exceed what is justified for its purpose.
Copyright infringement in Japan is subject to criminal penalties, including imprisonment of up to ten years, fines of up to JPY 10,000,000, or both. This includes the illegal downloading of manga, magazines, and academic texts, as well as operating "leech sites" that provide links to infringing content.
Yes, there are some exceptions. Copyrighted materials can be reproduced to the extent necessary for reporting current events, and works can be performed or exhibited freely if no admission fee is charged. Additionally, political speeches and government proceedings can be reproduced, except when creating an anthology of the author's works. Braille and audio versions of printed materials may also be reproduced for lending, but not for commercial use.
The Japanese copyright law has adapted to the possibilities presented by the Internet, including uploading content to servers and accessing content via hyperlinks. The right of public transmission for authors has expanded to include the uploading of content to servers accessible by the public. However, this has also led to a limitation of the public domain, with stricter enforcement of copyright protection. Additionally, with the rise of the Internet, cases such as photographers seeking disclosure of Twitter users who used their photographs without authorisation and music school operators facing copyright infringement claims for teaching copyrighted musical works have been adjudicated by the Supreme Court of Japan. The concept of copyright infringement in Japan continues to evolve with the increasing use of AI and data analysis, with ongoing discussions regarding the applicability of the Article 30-4 defence in these contexts.
