JAPAN Law and Practice Contributed by: Atsushi Igarashi, Yoichiro Kuriyama, Misa Takahashi and Kosuke Ojio, TMI Associates
5.2 Copyright/Database Rights Japan recognises and enforces copyright under the Copyright Act, in which protection arises automati - cally upon creation. No registration is required, pro - vided the content qualifies as a “work” – meaning a creatively produced expression of thoughts or senti - ments within the literary, academic, artistic, or musical domains. Although registration is not necessary for copyright protection to exist, Japan does offer a copyright reg - istration system. Registering a copyright provides sev - eral advantages, such as creating official evidence of authorship or ownership, giving public notice of trans - fers or pledges, and offering evidentiary support in litigation. Major defences to copyright infringement claims include private use, quotation, educational use, library exceptions, and specific allowances for use in text - books. Under the Japanese Copyright Act, databases may also be protected as “database works” if creativity is demonstrated in their selection or systematic arrange - ment of information. A notable example of copyright concerns in Japan occurred when the official emblem of the Tokyo 2020 Games was found to resemble the logo of an over - seas theatre. Because potential copyright infringe - ment became an issue, the Tokyo Organising Commit - tee of the Olympic and Paralympic Games (TOCOG) decided to replace the emblem with a new design. 5.3 Recognising Personality/Image Rights Although not explicitly stipulated under Japanese law, the rights to the names and portraits of celebrities – including athletes (their image rights) – are recognised in practice. These rights are generally understood to consist of: • the exclusive right to use one’s name and por - trait to attract customers and promote the sale of goods; and • publicity rights, acknowledged within the frame - work of Supreme Court rulings on tort liability under the Civil Code.
5.4 Protecting Personality/Image Rights According to Supreme Court principles, the unau - thorised use of an athlete’s likeness infringes upon publicity rights when the image is exploited primarily to attract an audience or customers. This includes: • using the image itself as a selling feature; • placing an athlete’s face on merchandise; and • using an athlete’s photograph in advertisements to promote goods or services. In addition, several provisions of the Unfair Competi - tion Prevention Act (UCPA) can be invoked to pro - tect athletes by preventing the commercial misuse of well‑known images. The UCPA prohibits acts that create consumer confusion, take unfair advantage of famous indications, or harm business reputation, thereby offering further safeguards against improper exploitation of an athlete’s likeness. 5.5 Licensing Under Japanese law, there are no special restrictions on licensing intellectual property rights – such as trade mark rights and copyrights – to third parties. In addition, the Supreme Court considers that the basis of publicity rights, including the names and portraits of athletes as described in 5.3 Recognis- ing Personality/Image Rights and 5.4 Protecting Personality/Image Rights , is a moral right. Publicity rights are therefore treated as personal rights and can - not be transferred or assigned. However, there is no restriction on licensing these rights to third parties. As a result, sports organisations and athletes frequently license both their intellectual property rights and pub - licity rights to sponsors and licensors in exchange for remuneration. Japanese professional sports organisations also commonly manage image rights through contractual arrangements. While an athlete’s image rights inher - ently belong to the athlete, clubs and leagues often require athletes to license those rights for official mar - keting and promotional purposes.
171 CHAMBERS.COM
Powered by FlippingBook