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Amendment to the Copyright Act Approved by the Ordinary Session of the Diet in 2020

1. Introduction

"Act to Revise Part of the Copyright Act and the Special Provisions on the Registration of Works of Computer Programming" was approved in the 201st ordinary session of the Diet on June 5, 2020 and promulgated on June 12 in the same year as Act No. 48.

Among the amendments in relation to this act, ① the measures for aiming at smoothening the use of copyrighted works such as the expansion of the applicable scope of the revisions for the restriction of the rights in relation to index sites and to unintended appearance in photography are supposed to be enforced on October 1, 2020, ② the measures for aiming at the appropriate protection of copyrights such as illegalization of downloading of infringing contents and strengthening the protection in relation to access control are supposed to be enforced on January 1, 2021, and ③ the foundation of a new verification system in relation to registration of works of computer programming is supposed to be enforced on the day defined in an cabinet ordinance within one year from the promulgation.

2. Purposes of the Amendment

This act, on the basis of the "Report by Copyright Subcommittee, Council for Cultural Affairs" etc. in February, 2019, provides the measures for aiming at an appropriate protection of copyrights etc. including, but not limited to, the countermeasures for the pirated copies on the Internet and the measures for aiming at smoothening the use of copyrighted works in order to appropriately cope with the changes etc. in the social situation in recent years concerning copyrighted works. Specific items in the amendments are as follows.

  1. 1.Enhancement of the measures against pirated copies on the Internet

    ① Measures against index sites

    ② Illegalization of downloading of infringing contents

  2. 2.Other items in the amendments

    (1) Measures for aiming at the smooth use of copyrighted works

    ① Expanding the applicable scope of the right-restricting regulation in relation to unintended appearance in photography

    ② Revising the right-restricting regulation in relation to the governmental procedure (relevant to Geographical Indication or the Plant Variety Protection and Seed Act

    ③ Introducing the assertionsystem in relation to the rights to use copyrighted works

    (2) Measures for aiming at the appropriate protection copyrights

    ④ Strengthening the procedure for gathering evidences in the lawsuits on infringement of copyrights

    ⑤ Strengthening the protection in relation to access control

    (3) Others

    ⑥ Revising the registration system in relation to works of computer programming (Special Provisions on the Registration of Works of Computer Programming)

*Right restricting regulation: a regulation to restrict the rights of copyright holders and to define the exceptional cases where copyrighted works can be used without permission from the copyright holder

3. Backgrounds of the Amendment (actual situations of the damages from pirated copies and so forth)

In recent years, the damages from the pirated copies on the Internet is getting serious; if we do not come up with some measures as quickly as possible, creators/content-providing industries may suffer irreparable damages. According to an estimation by a relevant association, the publications equivalent to about 300 billion yen have been read for free on "Mangamura," a giant piracy site and, thus, the incomes/sales of the cartoonists/publishers have considerably decreased as shown in a trial calculation and, further, the amount of damages in one year has reached about 73.1 billion yen on "Haruka-yume-no-ato," an index site in the largest class in Japan as shown in a trial calculation.

In addition, even after those sites were closed, there are still a numerous number of piracy sites; as of November of 2019, even if we counted in only the ten sites that had the largest number of accesses in the field of publication, the number of the accumulated users in a month reached 65 million (as of April of2020, even if we counted in only the ten sites that had the largest number of accesses, the number of the accumulated users in a month increased to about 87 million).

The damages from pirated copies are not limited to Manga/magazines; it occurs to any category/type of copyrighted works including photo collections, art/literature/technical books, business software, games, academic essays, newspapers, and so forth.

In consideration to those actual situation of damage, from the viewpoint of making the pirated copy preventing measures further effective, this act has been remade ① to have the regulations on " index sites" or the likes that lead the users to infringing contents and ② to expand the applicable scope of recognizing downloading infringing contents as illegal.

Because of those measures, it becomes possible to directly regulate index sites, which exist in a large number, and, thus, it is understood that it is possible to greatly reduce the accesses by the users to infringing contents. In addition, as for downloading infringing contents such as Manga, the persons who answered that they would "give up" or "reduce" downloading if doing so was recognized as illegal/punishable in the questionnaire provided to nationals in October 2019 exceeded 90 percent; thus, it is understood that some large effectivity is expected in the same manner.

Actual situations of the damages from piracy sites and so forth(2.4MB)

4. Overview of the Amendment

(1) Enhancement of the measures for pirated copies on the Internet

① Measures against index sites 【relevant to Article 113, Paragraph 2 to Paragraph 4; Article 119, Paragraph 2, item 4, item 5; or Article 120-2, item 3】

"Index sites" and "Index apps," with which the link information or the like leading to infringing contents is gathered and the users are guided to infringing contents, are regulated.

Specifically, malicious index sites and index apps. are defined as "those that specifically guide the general public to infringing copyrighted works or the like" and "those that are mainly used for the use by the general public of infringing copyrighted works or the like," moreover, the act of managing a index site and the act of providing a index app. are included in the scope of criminal punishment (imprisonment with hard labor of five years or less; a crime requiring a formal complaint from the victim for prosecution), at the same time with this, the act of providing a link or the like to infringing contents by using a index site/ index app. is regarded as an act of infringing a copyright or the like, and such act is included in the scope of civil procedure and criminal punishment (imprisonment with hard labor of three years or less; a crime requiring a formal complaint from the victim for prosecution).

② Illegalization of downloading of infringing contents 【relevant to Article 30, Paragraph 1, item 4, Paragraph 2, Article 119, Paragraph 3, item 2, Paragraph 5; etc.】

With respect to the regulation on downloading the copyrighted works uploaded illegally (regarded as illegal even for the purpose of private use), the applicable scope is to be expanded from music and images to copyrighted works in general (manga, books, essays, computer programs, etc.).

Concerning this, from the viewpoint of aiming at the balance between "securing the effectivity as the measures for pirated copies" and "preventing chilling effect of the justifiable collection of information etc. by citizens," the applicable scope of the regulation is limited only to the cases in which downloading is performed while it is known that the uploading has been made illegally and, at the same time with this, (i) unintended appearance in photography at the time of recording a screen shot (see also item (2) below), (ii) "minor cases" such as one to several frames of a Manga, (iii) secondary production/parody, and (iv) the downloading "in the cases in which there are special circumstances under which it is recognized that the rights of copyright holders are not unjustifiably harmed are excluded from the applicable scope of the regulation. Furthermore, as for criminal punishment, from the viewpoint of limiting only to specifically malicious acts, the cases are limited to those in which the copyrighted works whose authentic versions have been provided for charge are downloaded repeatedly and continuously.

Besides those, according to the supplemental provisions of this act, the regulation is made concerning dissemination and awareness raising to the citizens and the enrichment of education, facilitating providing marks to the disclosure sites by relevant business operators, the consideration in practicing criminal punishments, etc. so as to cope with the worries, anxieties, etc. of the citizens.

(2) Other items in the amendments

① Expanding the applicable scope of the right-restricting regulation in relation to unintended appearance in photography 【relevant to Article 30-2】

By corresponding to the changes in the real situations in the society such as a rapid spread of smartphones, tablet terminals, etc., the progress of video-posting/distributing platforms, etc., the applicable scope of the regulation to restrict the rights in relation to unintended appearance in photography is to be enlarged.

Specifically, it is defined that (i) the acts within the applicable scope, which used to be limited to "taking photography," "recording audio," and "recording video," are expanded to the reproduction and transferring acts in general (example: screen shots, live distributions, and making CG) and, in addition to that, (ii) that the unintended appearance in photography in the cases where an act that is not recognized as having creativity (example: photography with a fixed camera) is also included in the applicable scope, and (iii) that also those that are not difficult to separate (example: a stuffed doll held by a child) are included in the applicable scope if they are the copyrighted work accompanied by the main subject of such photography; thus, unintended appearance in photography accompanied by an act that is performed in general in daily lives etc. is allowed in a wide range of cases. On the other hand, the requirements of contingency, slightness, etc. are maintained as ever and, at the same time with this, the requirement of "within the righteous scope" is newly defined, thus, to prevent abusive use and such use that harms the market of the right holders.

② Revising the right-restricting regulation in relation to the governmental procedure (relevant to Geographical Indication or the Plant Variety Protection and Seed Act 【relevant to Article 42, Paragraph 2】

Conventionally, copying etc. of necessary references or the like used to be allowed without permission from the right holder in the procedure of examination for permission; copying etc. of necessary references or the like is allowed to be performed without permission from the right holder so that examination may be preformed quickly and accurately even (i) in the registration of a geographic indication based on the Geographic Indication Act (GI Act) and (ii) in the registration of a variety of plants based on the Plant Variety Protection and Seed Act. In addition, it is enabled to add procedure in a timely manner by using a cabinet ordinance so that a flexible handling may be made in the case in which the existence of the governmental procedure that requires some similar measures is revealed.

③ Introducing the assertion system in relation to the rights to use copyrighted works 【relevant to Article 63-2】

Conventionally, the licensee using a copyrighted work under permission from the copyright holder, if the copyright has been transferred, used to be incapable of asserting its right (the right to use) to use the copyrighted work against the recipient of the copyright or the like so that it may not be able to continue the use. To solve such situation and for the licensee to continue the use without anxieties, the system to be able to assert the right to use against the recipient of the copyright is to be introduced (it is not necessary to have such requirements as registration for asserting in the same manner as the cases of the ordinary right of implementation in the Patent Act).

④ Strengthening the procedure for gathering evidences in the lawsuits on infringement of copyrights 【relevant to Article 114-3】

Strengthening the procedure is aimed at from the viewpoint of making effective the orders for the submission of a dossier in the lawsuit of infringement of a copyright.

Specifically, in the same manner as the amendments of the Patent Act etc. in 2018, it is defined (i) that it is possible to view the actual dossier in the stage previous to the judgment of the existence of the necessity of issuing an order so that an appropriate judgment may be made on the possibility of an order for the submission of a dossier by the court and, at the same time with this, (ii) that it is possible to accept support from an expertise committee member (a college professor or the like) at the time when a judgment is to be made by viewing an actual dossier with respect to a dossier or the like with high technicality.

⑤ Strengthening the protection in relation to access control 【relevant to Article 2, Paragraph 1, item 20, item 21, Article 113, Paragraph 7, Article 120-2, item 4; etc.】

The regulation is revised so that the latest technology such as the license authentication that uses serial codes can be handled in relation to the protection of the "access control" to prevent the unjustifiable use of contents.

Specifically, in the same manner as the amendments of the Unfair Competition Prevention Act in 2018, with respect to access control, (i) the amendments of the provision of the definition (to make clear the fact that the newest technology such as license authentication is included in the applicable scope of protection and (ii) the regulation on providing unjustifiable serial codes or the like for evading license authentication or the like (to be added in the acts that are regarded as infringing copyrights or the like) are supposed to be made.

⑥ Revising the registration system in relation to works of computer programming(Special Provisions on the Registration of Works of Computer Programming) 【relevant to the Special Provisions for the Registration of Works of Computer Programming, Article 4, Article 26, etc.】

With respect to the system for the registration in relation to works of computer programming, the regulation is to be revised on the basis of the needs of relevant parties and the requests from the "designated registration organization" (Software Information Center) designated by the Commissioner for Cultural Affairs.

Specifically, it is stated (i) that a system in which the evidence to show the fact that a computer program work having been registered in advance is identical to a computer program work owned by a copyright holder or the like on his/her own (a subject of a lawsuit or the like) can be demanded is to be introduced (because of this, it becomes possible to surely enjoy the effect of presumption on the factual relation based on registration (example: the month, date, and year of creation)) and, at the same time with that, (ii) that the regulation on the exemption of the fees in the cases in which the national government or an independent administrative agency makes registration.

(3) Date of Enactment

Among the amendments in relation to this act, the above-mentioned (1) ① (the measures for index sites) and (2) ① to ③ (the measures for aiming at smoothening the use of copyrighted works) are enforced on October 1, 2020, the above-mentioned (1) ② ( illegalization of downloading of infringing contents) and (2) ④, ⑤, ⑥ (ii) (the measures for aiming at an appropriate protection of copyrights and the like) are enforced on January 1, 2021, and the above-mentioned (2) ⑥ (i) (the creation of the new verification system in relation to program registration) are enforced from "the day defined in a cabinet ordinance within the period not exceeding one year starting from the date of the promulgation," respectively.

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