JAPAN Law and Practice Contributed by: Takahiro Inoue, Tomohiro Kuribayashi, Yoshiyuki Takanashi and Daisuke Inaba, TMI Associates
ment unless it is justified under a statutory copyright exception. A copyright holder may pursue both civil remedies and criminal sanctions in respect of copy- right infringement. As with patent infringements, civil remedies include injunctions, damages and corrective measures. No statutory damages exist, but damages may be calcu- lated by several methods. The most frequently used method is that set forth in Article 114, Paragraph 3, under which a copyright holder may claim an amount equivalent to the licence fee that would have been received had a licence been granted prior to the exploitation of the work. Courts may award damages in excess of the ordinary licence fee, such as 1.5 to 2 times. In cases of infringement of moral rights, under Arti- cle 115 an author may also seek measures to restore honour or reputation, such as the publication of an apology. 3.8 Infringement Tests and Substantiality To establish copyright infringement, both access to the original work and similarity must be demonstrated. Similarity is recognised where the essential expressive features of the original work can be directly perceived from the allegedly infringing work. Where the specific expressions differ, similarity is generally denied. However, infringement may still arise through non-literal copying, particularly where the works share the same structure, sequence or organisation, provided such elements constitute crea- tive expression. For example, for compilation works, infringement may be established where the selection or arrangement of materials is substantially similar. By contrast, for software, copyright protects the expres- sion in the source code rather than the function itself. Accordingly, where no similarity is found at the level of source code, infringement is generally denied, even if both programs perform the same function. 3.9 Collective Management and Licensing Copyright Management Organisations In Japan, copyright management organisations (CMOs) operate under the Act on Management Busi- ness of Copyright and Neighbouring Rights. CMOs
must be registered with the Commissioner of the Agency for Cultural Affairs, establish standard con- tract terms to be applied between the CMO and copyright holders, and prepare tariff schedules, all of which must be filed in advance with the Commis- sioner. CMOs may not refuse licences for managed works without justifiable grounds. Two types of management entrustment exist: agency agreements and trust agreements for assignment. In a trust agreement, copyright is transferred to the CMO, which has authority to enforce such copyright, while the original copyright holder loses such authority dur- ing the management period. Licence Granted By the Commissioner of the Agency for Cultural Affairs The Copyright Act provides a mechanism similar to compulsory licensing. For example, if a user cannot locate the copyright holder despite reasonable efforts being made, the user may obtain a licence from a Commissioner and exploit the work by depositing compensation determined by the Commissioner (Arti- cle 67). 4. Industrial Designs and Trade Dress 4.1 Legal Framework and Protectable Subject Matter Industrial designs and trade dress are protected in Japan mainly under the Design Act and the UCPA. Under the Design Act, protection is available for designs that create an aesthetic impression through visual perception and fall within one of the following categories: • the shape, patterns, colours or combinations thereof of articles, including parts of articles; • the shape, patterns, colours or combinations there- of of buildings, including parts of buildings; and • images, including graphical user interfaces (GUIs), used for operating devices or displayed as a result of device functions. Under Article 2, Paragraph 1, Item 3 of the UCPA, the “configuration of goods” is protected against imitation
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