JAPAN Trends and Developments Contributed by: Kenji Tosaki, Hiroki Tajima and Chie Komiya, Nagashima Ohno & Tsunematsu
part of the creative expression of the copy - righted work contained in the training data as it is – eg, when an AI developer or AI service provider intentionally overfits a model; and • a database where the content of works is converted into a vector for the purpose of outputting all or part of the creative expres - sion of copyrighted works contained in an existing database or data posted on the internet. In addition, the Report states that, even if the intent is not to output the creative expression of the copyrighted work, the purposes of enjoy - ment and non-enjoyment can nonetheless be found to co-exist. This is the case where: • a work is reproduced for the purpose of addi - tional training to generate outputs that are strongly influenced by the creative expres - sion of the copyrighted work contained in the training data, by using a small amount of training data; and • it is determined from the underlying facts of specific cases that the purpose is to generate outputs in which the creative expression of the copyrighted work contained in the training data can be directly perceived. With respect to additional training for the pur - pose of generating outputs which imitate the “style” of the works of a specific creator, the Report states that “style” is just an idea and that even if AI output is in the same “style” as exist - ing copyrighted works, that does not constitute copyright infringement, although the purposes of enjoyment and non-enjoyment can still be found to co-exist. The Article 30-4 Proviso Even when the Non-Enjoyment Purpose Requirement is satisfied, Article 30-4 does not
apply where the interests of the copyright owner would be unreasonably prejudiced. Whether the interests of the copyright owner would be unrea - sonably prejudiced is determined by consider - ing whether the subject act(s) conflict(s) with the market for the use of the copyrighted works of the copyright owner or whether the act(s) will hinder potential future sales channels for the copyrighted works. The Report discusses the following four situations: • generation of many works which involve an “idea” similar to that of an existing copyright - ed work; • organisation of database works in a form that can be used for data analysis; • taking technical measures to prevent the reproduction of works for training AI; and • reproduction of infringing copies (such as pirated copies) for the purpose of training AI. Remedy If a copyright is infringed in the course of the development of generative AI, a copyright owner can seek injunctive relief, which includes meas - ures necessary for the cessation or prevention of infringement, and compensation for dam - age. The Report discusses whether a copyright owner can seek, as part of injunctive relief, an order to remove their copyrighted works from a training data set to be used for future AI train - ing, and to dispose of any models trained on the basis of such work. The Report states that it is possible to obtain an order to remove the copyrighted works from training data sets. On the other hand, the Report states that an order to dispose of trained models is generally unavailable, except where it is highly likely that the trained model will generate out - puts that are similar to the copyrighted works.
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