JAPAN Trends and Developments Contributed by: Kenji Tosaki, Hiroki Tajima and Chie Komiya, Nagashima Ohno & Tsunematsu
are all needed to deal with concerns and risks regarding generative AI and intellectual property, as each measure cannot cover all the concerns and risks by itself. Intellectual Property Act The Interim Report introduces issues in respect of the Copyright Act in the development stage and in the use stage of generative AI, by referring to the Report (see “Report on AI and Copyright Issues (15 March 2024)” above). The interim Report also discusses the potential for design infringement, trade mark infringement and unfair competition in the two stages of generative AI. As to trade mark infringement, while Japan’s Trademark Act sets no regulation applicable to acts during the course of developing generative AI, trade mark infringement is fundamentally deemed to have occurred when using genera - tive AI where there is similarity between: (i) the alleged infringing mark that contains AI output; and (ii) an existing trade mark. However, when determining whether trade mark infringement has occurred in the development of a mark, it makes no difference if the output was generated by generative AI or not. On the contrary, a mark can be protected by the Trademark Act regard - less of whether it was created by a person or generative AI. Technology The Interim Report points out that the develop - ment of AI technologies is ongoing, and there - fore, to assess and avoid risks in terms of gen - erative AI and intellectual property infringement, two points should be considered: (i) what spe - cific technological measures can be employed to cope with issues of generative AI; and (ii) how people can use technological measures in order to ensure and promote the use of these techno - logical measures. The Interim Report refers to five examples of technological measures:
Firstly, a system enabling users to recognise when an output was generated by AI (digital watermark, etc). With respect to such a system, the Interim Report points out that the existence or non-existence of an indication of the genera - tion of AI output does not always lead to the existence or non-existence of the copyrightabil - ity of the AI output. Further discussion is expect - ed regarding who attaches the indication, and the scope of AI output to which the indication should be attached. Secondly, the use of filtering, which is technology to determine whether AI output is similar to other content or to suppress AI input/output of data/ content that may infringe intellectual property rights. This is a useful measure to avoid copy - right infringement, to some extent. However, the Interim Report notes that the similarity element under the Copyright Act should be determined from the perspective of whether both works have creative expression. Therefore, accurately judg - ing the similarity element may be difficult if using filtering which checks mere external similarity. Thirdly, the Interim Report introduces technology to refuse collection by automatic collection pro - grams called “crawlers”. For example, there is a system, called “robots.txt” that gives instruc - tions about whether crawlers can access spe - cific content (however, “robots.txt” is ineffectual when the crawler ignores it). Further, restricting crawlers’ access by means of ID and password is also effective. Fourthly, the introduction of technology to pre - vent learning by applying special image process - ing. This technology is useful from the point of view that copyright owners can directly control situations in which their works are used for AI learning, since it is impossible to generate new learning images with similar styles using this
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