Ⅰ. Background of Amendment
The Act Partially Amending the Copyright Act and the Act on Special Provisions for the Registration of a Computer Program Work (Act No. 48 of 2020) was enacted on June 5, 2020, and promulgated on June 12, 2020. The main points of the amendments and the dates of enforcement are as described and supplemented in Section II below. Almost all of the revisions in the amendments will come into force on January 1, 2021 at the latest.
Ⅱ. Main Points of the Amendments and Dates of Enforcement
1. Strengthening of Measures against Pirates on the Internet
(1) Measures against leech sites and leech apps (effective from October 1, 2020)
The following acts are deemed to constitute an infringement of the copyright etc., and are subject to not only claims for damages or an injunction but also criminal penalties as an intentional offense prosecutable upon a complaint: (i) an act of intentionally or negligently providing, through leech sites or leech apps, information on links to copyrighted works that are illegally uploaded on other websites, and (ii) an act of a leech site operator or a leech app provider intentionally or negligently leaving the act of providing intentionally or negligently the links to copyrighted works that are illegally uploaded on other websites by any other person.
The term “leech sites” or “leech apps” herein used is defined as websites or programs (i) which specifically leads the public to infringing contents, or (ii) which are primarily used for the use of infringing contents by the public. Item (i) assumes the case, for example, where a website operator or a program provider adopts a design displaying contents of the website or program in order to induce the public to access infringing contents. Item (ii) assumes the case, for example, where a number of illegal links are posted by users on relevant websites or programs, and as a result, the use of infringing contents is promoted. It is noted that leech site operators or leech app providers do not include platform service providers who do not directly operate leech sites or provide leech apps.
(2) Illegalization of an act of downloading copyright-infringing contents (effective from January 1, 2021)
An act of knowingly downloading any illegally uploaded copyrighted works (excluding derivative works other than translated works and parodies) is considered to constitute an infringement of the right of reproduction even if such download is made for the purpose of personal use (excluding any act of downloading which is minor or does not unreasonably prejudice the interest of the right holder), and subject to claims for damages or an injunction and criminal penalties as an intentional offense prosecutable upon a complaint if such act is repeatedly and continuously performed, and a legitimate version of the relevant copyrighted work is provided for a fee.
There is no change to regulations concerning an act of illegally downloading music and videos.
Generally, downloads are regarded as “minor downloads” if the portion downloaded is very short in light of the entire content of a copyright work. For example, downloading only a few frames from a comic consisting of dozens of pages corresponds to “minor downloads”, while on the other hand, downloading about half of one episode of a comic, or the entire frame of a single frame comic does not correspond to “minor downloads”. Further, downloading a painting, illustration, or photograph with low quality and grainy images that cannot be appreciated corresponds to “minor downloads”. For example, downloading a thumbnail image corresponds to “minor download”, while on the other hand, downloading a high-quality picture does not correspond to “minor downloads”. In addition, whether or not there are circumstances in which “downloading does not unreasonably prejudice the interest of the right holder” is determined based on the correlation between the degree of necessity of protecting a copyrighted work based on the type and economic value of the copyrighted work, and the manner of use including the purpose and necessity of downloading the copyrighted work. For example, in the case where a fraud manual (a work) prepared by a fraud group is posted on a whistleblowing site without permission (illegal uploading) by a victim aid group, such downloading which is made for the purpose of protecting oneself or one’s family corresponds to “downloading which does not unreasonably prejudice the interest of the right holder.”
2. Measures to Promote Smooth Utilization of Copyrighted Works
(1) Expansion of limitation on copyrights in connection with incidental inclusion of copyrighted works (effective from October 1, 2020)
The scope of limitation on copyrights is expanded so that the incidental inclusion of a copyrighted work not only in a photograph and an audio or visual recording, but also in screenshot, live video streaming, computer graphics conversion, etc. is permitted. Consequently, it has become possible to cope with, for example, the incidental inclusion of illegally uploaded animation character icons in screenshot, live video streaming by an individual using a moving image contribution and distribution platform, service of distributing drone videos to a remote place in real time, and computer graphics conversion of landscapes when producing video game or animation.
(2) Development of provisions for limitation on copyrights for administrative proceedings (relating to the Geographical Indications Act and the Plant Variety Protection and Seed Act) (effective from October 1, 2020)
It is permissible to reproduce any documents or literature necessary for not only patent examination procedures etc., but also registration procedures for geographical indications or plant varieties, without authorization of right holders.
(3) Introduction of a system enabling an authorized user of a copyrighted work to assert its right against any third party (effective from October 1, 2020)
A user of a copyrighted work who has a license to use granted by a right holder is able to duly assert its right against an assignee of copyright of the relevant work, any third party who has obtained the copyright, or a bankruptcy trustee in the case of the commencement of bankruptcy proceedings made against a right holder, without any requirement for said assertion, such as registration of a license, so that the user who has received the license may continue to use the relevant copyrighted work at ease even in the case of the occurrence of the assignment of copyright or the commencement of bankruptcy proceedings against the right holder.
3. Measures to Promote Appropriate Protection of Copyright
(1) Strengthening of Procedure for Collection of Evidence (effective from January 1, 2021)
In the case where a petition for an order to submit a document for proving infringement or calculating the amount of damage caused by infringement is filed in a copyright infringement lawsuit, the court is able to view the relevant documents prior to determine whether there is the necessity to issue an order to submit the documents as well as whether it is reasonable to issue such order (whether there are justifiable grounds for refusing submission of the documents), and to obtain support from technical advisers when determining the same.
(2) Strengthening of Protection for Access Control (effective from January 1, 2021)
License authentication using a serial code, which is a type of access control that has become popular accompanied with the shift from over-the-counter sales as the method for providing content to distribution via the Internet, is specified as being protected, and an act of illegally providing or otherwise making available a serial code is included in acts subject to the restrictions, and such act is deemed to constitute an infringement of the copyright etc. and subject to claims for damages or an injunction as well as criminal penalties.
4. Development of a Registration System for Works for Computer Programming
(1) Systematization of requesting a registration certificate to a designated registration agency (Software Information Center) (effective from the date designated by Cabinet Order within one (1) year after June 12, 2020 [the date of promulgation])
(2) Repeal of provisions exempting the State and incorporated administrative agencies from the payment of registration fees (effective from January 1, 2020)
※ The contents of this article are intended to convey general information only and not to provide any legal advice.
Kei IIDA (Writer)
Attorney at Law & Patent Attorney (Daini Tokyo Bar Association)
Contact information for inquiries: firstname.lastname@example.org