JAPAN Law and Practice Contributed by: Atsushi Igarashi, Yoichiro Kuriyama, Misa Takahashi and Kosuke Ojio, TMI Associates
mark domestically. The court rejected the claim on the ground that the plaintiff’s position consti - tuted an abuse of rights. 5.2 Copyright/Database Rights The Copyright Act grants copyrights and moral rights to the author of a work which is a cul - tural product. Databases that display creativity through the selection or systematic construc - tion of information are protected as copyrighted work. Because a copyright accrues automati - cally when content is recognised as creative, sports organisations create content themselves and acquire rights to copyrights under contracts with copyright holders. Unlike trade mark rights, copyrights have the advantage of being granted without applying for registration or involving complex procedures and are therefore widely used in sports busi - nesses. That being said, it is necessary to bear in mind that copyrights may be unclear in terms of copyrightability or the attribution of rights, and it is therefore not easy to determine the pres - ence of infringement. For example, the official emblem of the Tokyo 2020 Games was said to resemble the logo of an overseas theatre, and because the existence of copyright infringement was therefore at issue, the TOCOG changed to another emblem. 5.3 Image Rights and Other IP Although not stipulated by Japanese law, the rights to the names and portraits of celebrities, such as athletes (their image rights), are recog - nised. They are generally recognised as: • the right to exclusively use names and por - traits to attract customers and promote the sale of goods; and • publicity rights in the context of Supreme Court rules on tort under the Civil Code.
In the case of infringement committed by a third party for the purpose of exploiting an ath - lete’s ability to attract customers by their own portraits, injunctions against infringing acts in tort and claims for compensatory damages are allowed. The following three types of infringe - ment of publicity rights are common: • the portrait being utilised as an independent product; • placing portraits on products in order to dif - ferentiate products; and • using the portrait as an advertisement for products. 5.4 Licensing Under Japanese law, there are no special restric - tions on the licensing of 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, such as names and portraits of athletes, as described in 5.3 Image Rights and Other IP , is a moral right. Publicity rights are therefore construed as per - sonal and cannot be assigned. However, there is no restriction on the licensing of these rights to third parties. For this reason, sports organisa - tions and athletes often licence their intellectual property rights and publicity rights to sponsors and licensors for remuneration. 5.5 Sports Data The data of athletes is used for coaching and training as well as to improve their athletic per - formance. It is also used for fan engagement and to develop products and services for sponsors and other stakeholders. On the other hand, by accumulating and analys - ing spectator data, such as visit history to ven -
163 CHAMBERS.COM
Powered by FlippingBook