JAPAN Trends and Developments Contributed by: Kenji Tosaki, Hiroki Tajima and Chie Komiya, Nagashima Ohno & Tsunematsu
to expand the scope of defences and to intro - duce more generalised defences. The purpose of the 2018 amendment was to contribute to promoting innovation by enabling exploitation of copyrighted works without authorisation from the copyright owner, when such exploita - tion does not significantly affect the market of the copyrighted works. One of the generalised defences introduced by the 2018 amendment was the defence for an act with a non-enjoyment purpose, set forth in Article 30-4 of the Copyright Act. This defence was not as generalised as the “fair use” defence under US copyright law, but it was understood that Article 30-4 would allow for some flexibility in responding to new modes of use of works accompanying technological invention, compared to the more rigid defences available prior to the 2018 amendment. Under Article 30-4 of the Copyright Act (as amended), a work may be exploited in any way and to the extent considered necessary, in cas - es where it is not the purpose of the exploiter to personally enjoy or cause another person to enjoy the thoughts or sentiments expressed in that work (the “Non-Enjoyment Purpose Requirement”). However, this exception does not apply if the relevant act would unreasonably prejudice the interests of the copyright owner in light of the nature or purpose of the work or the circumstances of the exploitation (the “Article 30-4 Proviso”). The Report addresses the applicability of the foregoing defence with respect to infringement in the course of generative AI development by discussing the Non-Enjoyment Purpose Requirement and the Article 30-4 Proviso, and also discusses the parties against whom a copy - right owner can exercise the copyright.
The Non-Enjoyment Purpose Requirement Article 30-4 lists three examples in which it is not the purpose of the exploiter to personally enjoy or cause another person to enjoy the thoughts or sentiments expressed in a given work. The first example is the exploitation of a work for use in testing to develop, or to put into practical use, technology that is connected with audio record - ings, video recordings or other exploitations of a copyrighted work. The second example is the exploitation of a copyrighted work for use in data analysis (meaning the extraction, comparison, classification, or other statistical analysis of the constituent language, sounds, images, or other elemental data from a large number of works or a large volume of other such data). The third example is the exploitation of copyrighted works – in the course of computer data processing or otherwise – in a way that does not involve what is expressed in the work being perceived by the human senses (for computer programming work, such exploitation excludes the execution of the works on a computer). The Report states that the above-mentioned “data analysis” example includes that for the training of generative AI, and that the exploita - tion of a work for use in data analysis for train- ing generative AI meets the Non-Enjoyment Pur - pose Requirement. It should also be noted that the Non-Enjoyment Purpose Requirement is not satisfied (ie, the relevant exploitation can constitute copyright infringement) when the purpose of enjoyment and the purpose of non-enjoyment co-exist. The Report provides examples of cases in which the purposes of enjoyment and non-enjoyment are deemed to co-exist: • a work is reproduced in order to perform additional training to intentionally output all or
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