The amendment of the Copyright Act, which was enacted in the ordinary session of the Diet in 2018 and came into force on January 1, 2019, is the largest amendment of the Copyright Act in recent years.
Among the various revisions, the most notable point is that the following were stipulated as the “development of flexible rights restrictions in response to the progress of digitalization and networking.”
In other words, the amended Copyright Act sets forth “exploitations not for enjoying the ideas or emotions expressed in a work” (Article 30-4 of the Copyright Act) and “exploitation, etc. of works associated with the exploitation of works on a computer” (Article 47-4 of the Copyright Act) that are subject to rights restrictions (these acts are classified under the category of “acts that are normally considered not to harm the interests of right holders” in legislative history). The Copyright Act also sets forth “minor exploitation, etc. associated with data processing on a computer and provisions of results thereof” (Article 47-5 of the Copyright Act) as an act to which copyright cannot be exercised. These acts are classified as “acts with minor disadvantages to right holders” in legislative history.
More specifically, Article 30-4 of the new Copyright Act sets forth that copyright does not extend to the exploitation of works which are not for enjoying the ideas or emotions expressed in the work (“non-enjoyment exploitation”), stating that:
and, as an example of the foregoing, Article 30-4 of the new Copyright Act presents the following case:
In this regard, Article 47-7 of the old Copyright Act prior to the revision in 2018 already restricted the exercise of copyright against “recording or adaptation” of a copyrighted work in a recording medium for the purpose of information analysis even if such “recording or adaptation” is done for the purpose of profit. Accordingly, the old Copyright Act permitted a software vendor, who intends to develop artificial intelligence (“AI”), to perform “recording or adaptation” of another entity’s copyrighted work for machine learning to develop a learning model, and such a software vendor’s act itself does not cause any issues regarding reproduction and/or adaptation right violation. Because of the foregoing situation, Japan was referred to as the “machine learning paradise” in relation to the Copyright Act.
What should be noted is that the 2018 amendment explicitly permits the “exploitation” of a work “in any way” if there is no intention of enjoying the ideas or emotions expressed in the work.
Therefore, the amended Act explicitly permits the business model of creating a learning data set consisting of third parties’ works, and then transferring and disclosing it to an unspecified third party who intends to develop AI, which the Copyright Act before the amendment did not permit. In other words, in Japan, the business model for selling learning data sets used for machine learning is allowable under the Copyright Act, and the business impact of this revision is considered to be significant.
Provided, however, it should be noted that even after the enactment of this amendment, exploitation of database without approval from its copyright holder will still likely be considered as within the scope of copyright enforcement in consideration of the impact it will have on the interest of the copyright holder.
In Article 47-7 of the old Copyright Act, the subject of the rights restrictions was limited to “information analysis by computer,” but in the new Act, the phrase “by computer” was deleted, and information analysis without computer (e.g., paper hardcopies for analysis of magazine articles and video recordings for analysis of television programs) is also subject to the rights restrictions.
Article 47-5(1) of the new Copyright Act also provides rights restrictions independently from Article 30-4 of the New Copyright Act. According to Article 47-5, the exploitation of works associated with data processing and provision of results thereof (for example, a verification service for plagiarism of papers) is subject to the rights restrictions.
It should be noted that, unlike Article 30-4, Article 47-5(1) does not require non-enjoyment exploitation.