JAPAN Trends and Developments Contributed by: Kenji Tosaki, Hiroki Tajima and Chie Komiya, Nagashima Ohno & Tsunematsu
Possibility of copyright infringement in the use of generative AI Overview Copyright infringement is deemed to have occurred where there is both (i) similarity in the allegedly infringing work to an existing copy - righted work; and (ii) reliance on the existing copyrighted work (known as the “Reliance Requirement”). Whether an AI output is “similar” to an existing copyrighted work in the above sense is deter - mined in the same way as the similarity between a human-generated work and an existing copy - righted work would be. The Reliance Requirement The Report addresses three types of cases in which reliance may or may not be found, each of which concerns whether (i) the AI end user (the “AI User”) recognised the existing copyrighted work; and (ii) the existing copyrighted work was included in the training data, as follows: • Where the AI User recognized the existing copyrighted work – the Report states that the Reliance Requirement is satisfied and it should be determined that the AI User is infringing the copyright. • Where the AI User was unaware of the exist - ing copyrighted work and the existing copy - righted work was included in the training data – the Report states that, in this scenario, the AI User will generally be considered to meet the Reliance Requirement, because the AI User had access to the existing copyrighted work. The Report also states, however, that if technical measures are taken which can ensure that the generative AI does not generate creative expressions of work used for AI training processes, then the Reliance Requirement may not be met, even if existing
copyrighted work was included in the training data. • Where the AI User did not recognise the existing copyrighted work and the existing copyrighted work was not included in the training data – the Report states that in this case, the Reliance Requirement is not met. Remedies A copyright owner may seek an injunction, including measures which are necessary for the cessation or prevention of infringement, as well as compensation for damage/damages. The Report states that a copyright owner can seek the following remedies as injunctive relief: • against the AI User – (a) an order to refrain from generating infring - ing output data in the future and to cease using infringing output data already gen - erated; and (b) an order to dispose of infringing output data already generated; • against the AI developer – an order to remove the infringed copyrighted work from the data set that was used for the development of the AI (if it is likely that the data set will still be used for AI development); and • against the AI service provider – an order to apply technical restrictions on the generative AI that generated the infringing output, such as – (a) measures to avoid generating output data in response to a specific prompt input; or (b) measures to avoid generating output data that is similar to the copyrighted works which were used for training AI (if it is likely that further copyright infringement will be caused by the generative AI that generated the infringing output).
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