1. Introduction

The Act Partially Amending the Copyright Act was approved at the 196th ordinary session of the Diet on May 18, 2018, and promulgated on May 25 of the same year as Act No. 30 of 2018.

2. Purpose of the Amendment

Based on the Report by the Copyright Subdivision of the Cultural Council compiled in April 2017 and other materials, this Act makes necessary amendments to the Copyright Act in order to ensure the fair use and appropriate protection of copyrighted works, etc. in response to advancement in digitalization and networking. In addition, the Act provides for implementation of measures necessary for signing the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled adopted at the World Intellectual Property Organization in June 2013, in order to provide print-disabled persons with improved access to copyrighted works, etc. Specifically, the Act mainly develops provisions concerning the following four points.

* Provisions on the restriction of rights: provisions that specify exceptional cases in which a work may be exploited without the authorization of its copyright owner by restricting the copyright owner's rights.

3.Overview of the Amendment

(1) EDevelopment of flexible provisions on the restriction of rights that respond to advancement in digitalization and networking

In order to enable flexible response to changes of the times, such as advancement of information and communications technology (ICT), provisions on the restriction of rights with appropriate flexibility were developed with regard to certain exploitation of works, etc. that does not adversely affect the market of the works, etc. In designing the system, various options were studied, including whether or not highly flexible provisions similar to the U.S. fair use provisions should be introduced. As a result of the study, it was determined that the most desirable approach would be to combine multiple provisions with an appropriate balance between clarity and flexibility, instead of adopting provisions similar to the fair use provisions, when comprehensively considering Japanese companies' awareness of legal compliance, the level of citizens' understanding of copyright, Japan's litigation system, how roles are shared between the legislative and judicial branches, and the relationship with the principle of legality, and premising Japan's various circumstances. Specifically, as shown below, provisions with appropriate flexibility were developed for categories of acts that are normally not considered to harm the interests of the right holder ([1] and [2] below) and a category of acts that may only cause a minor disadvantage to the right holder if at all ([3] below).

[1] Exploitation without the purpose of enjoying the thoughts or sentiments expressed in a work (Re: Article 30-4)

Article 30-4 provides that a person may exploit a work, to the extent considered necessary, if it is not the person's purpose to personally enjoy or cause another person to enjoy the thoughts or sentiments expressed in that work, such as if it is exploited for use in testing to develop or put into practical use technology, exploited for use in data analysis, or exploited in the course of computer data processing, etc. in a way that does not involve perception by the human senses. Based on these provisions, it would become possible to widely carry out acts without the purpose of enjoying the thoughts or sentiments expressed in a work, such as an act of recording a work in a database as training data for development of artificial intelligence (AI), without the authorization of the right holder.

In line with the development of these provisions, former Articles 30-4 and 47-7 were arranged and integrated into new Article 30-4.

[2] Exploitation of works incidental to the exploitation of works on a computer (Re: Article 47-4)

Article 47-4 provides that a person may exploit a work that is made available to be exploited on a computer, to the extent considered to be necessary, if the person's purpose is to make that work available to be exploited incidentally on a computer so that the relevant work can be smoothly or efficiently exploited on that computer (paragraph (1)), or the person's purpose is to maintain or recover the possibility of exploiting a work on the computer (paragraph (2)). Based on these provisions, it would be possible to carry out acts such as the following, without the authorization of the right holder: an act of creating a cache in order to speed up the information and communications processing through a network; or an act, conducted when replacing a portable music player with a built-in memory with another player, to temporarily reproduce a music file stored in the memory onto another recording medium.

In line with the development of these provisions, former Articles 47-4, 47-5, 47-8, and 47-9 were arranged and integrated into new Article 47-4.

[3] Minor exploitation incidental to computerized data processing and the provision of the results thereof (Re: Article 47-5)

Article 47-5 provides that a person who uses a computer to search for information or to undertake data analysis and makes the results thereof available may undertake minor exploitation of a publicized work or a work made available for transmission incidental to that act, to the extent considered to be necessary in light of the purpose of the act. Based on these provisions, it would be possible to carry out acts such as the following, without the authorization of the right holder: an act of searching for a book containing a specific keyword, and providing a part of the text containing that keyword from the book, along with the bibliographic information or information on the location of the book (a book search service); or an act of digitizing a large number of articles and books to make them searchable and providing information on whether or not an article to be inspected is plagiarized from another article, etc. and the plagiarized percentage, as well as indicating a part of the text of the original article, etc. corresponding to the plagiarized part (an article plagiarism detection service). In addition, if new needs for applying the content of this Article arise, acts relating to those needs may be added to the acts subject to the restriction of rights by specifying them by Cabinet Order.

In line with the development of these provisions, former Article 47-6 was arranged and integrated into new Article 47-5.

(2) Development of provisions on the restriction of rights, etc. that respond to computerization of education

With an aim to contribute to improving the quality of education in schools, etc. and enhancing educational opportunities, provisions on the restriction of rights in schools and other educational institutions (Article 35) came to cover not only the conventionally covered copying (reproduction) and the transmission of a work through a network in a remote joint lesson (public transmission), but also public transmission, etc. other than those for a remote joint lesson, so as to facilitate exploitation of works, etc. in education utilizing ICT. In addition, right holders are given a right to claim compensation with regard to the public transmission that newly became subject to the restriction of rights. Based on these provisions, it would become possible to carry out acts such as an act of a teacher using another person's work to prepare an educational material and making public transmission of the material to students' terminals for the purpose of use in preparing for or reviewing classes at school, etc., without the authorization of the right holder, on a condition that compensation is paid to a single organization designated by the Commissioner of the Agency for Cultural Affairs.

(3) Development of provisions on the restriction of rights for enhancing disabled persons' access to information

In order to enhance disabled persons' access to information, provisions on the restriction of rights that allow a person to transliterate a book, etc. for persons with visual and vision-related impairments without the authorization of the right holder (Article 37, paragraph (3)) have been made clear so that the scope of disabled persons to whom transliteration, etc. may be provided would include not only the conventionally stipulated persons for whom it is difficult to perceive visual renderings due to a visual impairment, developmental disorder, or other disabilities, but also physically disabled persons, such as those who have lost their limbs. Moreover, acts subject to restriction of rights newly include email transmission, etc. in addition to the conventional copying (reproduction), transfer, and internet transmission (automatic public transmission). Based on these provisions, it would be possible to carry out acts such as the following, without the authorization of the right holder: an act of preparing and providing a transliterated book for physically disabled persons who cannot hold a book, etc.; or an act of making email transmission of transliteration data that has been prepared for persons who have difficulty reading a book, etc. due to various disabilities.

Furthermore, the provisions of that paragraph have expanded the scope of organizations, etc. that may carry out transliteration, etc. of books for persons with visual and vision-related impairments without the authorization of the right holder from persons that establish public facilities, such as facilities for disabled persons and libraries, and persons individually designated by the Commissioner of the Agency for Cultural Affairs, to also include persons that have not been designated by the Commissioner of the Agency for Cultural Affairs but satisfy certain requirements, in order to widely include volunteer organizations, etc. that have appropriate frameworks.

(4) Development of provisions on the restriction of rights for promoting utilization of archives, etc.

With an aim to contribute to reinforcing the intellectual infrastructure that serves as the basis for creation of Japanese culture by appropriately collecting and preserving the cultural materials held by Japan and promoting their effective utilization, the following provisions were developed for promoting utilization of archives, etc.

[1] Transmission of rare or out-of-print materials by the National Diet Library to foreign libraries (Re: Article 31)

Whereas the National Diet Library (NDL) provides a transmission service for libraries through which it may transmit a material that is difficult to obtain through normal trade channels because it is out of print or for a similar reason and that has been digitized to other libraries, Article 31 provides that the NDL may also transmit such material to foreign facilities, such as libraries, from the viewpoint of disseminating Japanese culture. Based on these provisions, it would be possible to provide valuable materials to foreign libraries, etc. that are conducting studies on Japan.

[2] Exploitation of an artistic or photographic work in connection with the exhibition of the work (Re: Article 47)

As an amendment in line with technological progress, Article 47 provides that, for the purpose of explaining or introducing an exhibited work at an art museum, etc., a person may not only print the exhibited work in pamphlets, but may also display the exhibited work on an electronic device, such as a tablet terminal, to the extent considered to be necessary (paragraphs (1) and (2)). Based on these provisions, it would become possible to carry out acts such as the following, without the authorization of the right holder: an act of using an electronic device lent out at the venue to explain the production technique of a work by providing an enlarged view of a detailed part of the work or to explain the forms of the bottom and back faces of a three-dimensional exhibited object that are difficult for viewers to see due to limitations in the exhibition method.

Similarly, given that, with the recent development of ICT, it has become common for a person who intends to visit an art museum, etc. to search for information on an exhibited work via the facility's website or mail magazines, Article 47 provides that a thumbnail image of an exhibited work (a small image of the work) may be published on the internet to the extent considered to be necessary, if the purpose is to widely provide information on the exhibited work to the general public (paragraph (3)).

[3] Revision of the compulsory license system concerning a work for which the copyright owner is unknown, etc. (Re: Article 67)

The compulsory license system concerning a work for which the copyright owner is unknown, etc. is a system whereby a person may exploit a work for which the copyright owner is unknown, etc. if the person obtains a compulsory license from the Commissioner of the Agency for Cultural Affairs and deposits compensation for the copyright owner in an amount fixed by the Commissioner as equivalent to the ordinary rate of royalties. In the amendment, it was provided that the national or local government, etc., which is expected to securely pay the compensation, is not required to make the deposit in advance, and may pay the compensation to the copyright owner afterwards, when it becomes able to contact the copyright owner (paragraph (2)). In the same manner, the national or local government, etc. is not required to deposit the collateral that is normally required for exploiting the work while the application for a compulsory license is pending, and may directly pay the compensation concerning the exploitation to the right holder when the right holder is found (Article 67-2).

(5) Effective date

The amendments under this Act relating to abovementioned (1) flexible provisions on the restriction of rights that respond to advancement in digitalization and networking, (3) provisions on the restriction of rights for enhancing disabled persons' access to information, and (4) provisions on the restriction of rights for promoting utilization of archives, etc. came into effect on January 1, 2019, and those relating to abovementioned (2) provisions on the restriction of rights, etc. that respond to computerization of education came into effect on April 28, 2020.