JAPAN Law and Practice Contributed by: Takahiro Inoue, Tomohiro Kuribayashi, Yoshiyuki Takanashi and Daisuke Inaba, TMI Associates
3.2 Requirements for Copyright Protection The Copyright Act defines a “work” protected by copyright as “a creatively produced expression of thoughts or sentiments that falls within the literary, academic, artistic, or musical domain” (Article 2, Para- graph 1, Item 1). To qualify as a copyrightable work, it must satisfy the requirement of creativity; it is suf- ficient that some element of the author’s individual- ity is expressed. Fixation is not required for copyright protection. Copyright arises automatically upon the creation of a work and does not depend on the fulfil- ment of any formalities, such as registration. 3.3 Authorship and Ownership The Copyright Act defines an “author” as “a person who creates a work” (Article 2, Paragraph 1, Item 2). To qualify as an author, a person must be substan- tively involved in the creative process; a person who merely proposes or provides instructions for the crea- tion of a work does not qualify as an author. A “joint work” is defined as “a work created by two or more persons whose contributions to the work cannot be separated so as to allow each part of the work to be used independently” (Article 2, Paragraph 1, item 12). In such cases, the co-authors jointly hold the cop- yright. The co-authors may not use the work, license it to third parties, or transfer their shares without the consent of the other co-authors, although such con- sent may not be unreasonably withheld (Article 65, Paragraphs 1 through 3). A work made for hire is recognised where a work is created by an employee (or a director) in the course of their duties, at the employer’s initiative, and is, or is intended to be, made public under the employer’s name. In these circumstances, the employer is regard- ed as the original author and holds both the copyright and the moral rights. As a general rule, works created by independent contractors do not qualify as works made for hire. 3.4 Scope of Rights and Moral Rights Economic Rights The Copyright Act vests authors with exclusive eco- nomic rights, including the rights of: • reproduction;
• border enforcement measures through Japan Customs. However, Customs enforcement under the UCPA requires an opinion from the Minister of Economy, Trade and Industry. Criminal penalties may also apply. Jurisdiction Trade mark disputes and unfair competition disputes are heard by district courts with jurisdiction over the relevant dispute, particularly the intellectual property divisions of the Tokyo District Court and Osaka District Court. Appeals are handled by the Intellectual Prop- erty High Court. 3. Copyright 3.1 Legal Framework and Copyrightable Works In Japan, copyright protection is governed by the Copyright Act, Article 10 of which provides a non- exhaustive list of examples of works eligible for copy- right protection, including: • novels, scenarios, articles, lectures and other liter- ary works; • musical works; • works of choreography and pantomime; • paintings, woodblock prints, sculptures and other works of fine art; • works of architecture; • maps and other diagrams of an academic nature, such as plans, charts and models; With respect to the copyrightability of applied art, in a judgment rendered on 24 April 2026, the Supreme Court articulated a standard for determining the copy- rightability of applied art for the first time, holding that mass-produced utilitarian articles may qualify for cop- yright protection where “the configuration of the whole or a part of the mass-produced utilitarian products can be conceptually perceived, independently of the elements derived from their function, as a creatively produced expression of thoughts or sentiments”. • cinematographic works; • photographic works; and • computer programs.
161 CHAMBERS.COM
Powered by FlippingBook