FAQ/What should I do first to use other’s work?

 

{FAQ} What should I do first to use other’s work?

The best way to make sure your intended use of a copyrighted work is lawful is to obtain permission or a license from the right copyright owner.

Copyright law provides the owner of copyrights in a work—initially the author of the work—with a wide range of exclusive rights to use the work. Although the exclusive rights are subject to certain limitations under copyright law, if you intend to use a work of others, you need to identify its copyright owner. Unless a particular limitation applies, you are required to seek permission—a license—from the copyright owner to ensure your intended use of a copyrighted work is lawful.

 

Once you know that you need permission to use a copyrighted work of others in your business plan, you will have to research its present copyright status and then contact the right copyright owner (who lawfully has the copyright at present).

Usually, you will start your research by checking the copyright notice and/or the records of the Agency for Cultural Affairs or some copyright-management associations such as JASRAC.

After making sure of the copyright status of the work you wish to use, you will get in contact with the copyright owner to request permission to use the work. However, you should know that the copyright owner may work with an agent whose job is to grant licenses to use his/her work on the copyright owner’s behalf. In that case, the first person you intend to contact could not control the copyrights.

 

[Note] In Japan, under certain conditions, you may exploit a work whose copyright owner is unknown by obtaining a compulsory license granted by the Commissioner of the Agency for Cultural Affairs.

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FAQ/What is a work “in the public domain”?

 

{FAQ29} What is a work “in the public domain”?

Generally speaking, the public domain refers to every creative work that is no longer protected by copyrights, trademark, patent and so on. In Copyright law, creative works that are no longer protected are owned by the general public not by anyone else.

When a work is said to be in the public domain, that means the work no longer has a right owner of the economic rights. This occurs commonly because the term of copyright protection has expired. For example, the economic rights to Shakespeare’s works have lapsed and all of his works are in the public domain. So, the Shakespeare’s works can be freely used or exploited by the public without authorization of anyone and without payment of royalties.

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FAQ/Why does copyright law exist around the world?

 

{FAQ} Why does copyright law exist around the world?

Protection of copyrights (economic rights and moral rights) and neighboring rights is essential for enhancing individual creativity, which can lead to development of cultural industries and promotion of cultural diversity. Rampant piracy and low level of enforcement of copyright laws destroy the incentives for the creation and distribution of cultural products. Therefore, almost all countries of the world have expressed the need for concerted efforts to encourage creativity and to foster sustainable cultural development.

In order to make copyright protection sustainable, it is indispensable to maintain the fair balance between the interests of authors and the interests of the general public to have access to cultural products, that is, to use or exploit copyrighted works.

 

(ref) Art.1 of Copyright Act

The purpose of this Act is to provide for authors' rights and neighboring rights with respect to works, as well as with respect to performances, phonograms, broadcasts, and cablecasts, and to ensure protection for the rights of authors and other such persons while according attention to the fair exploitation of these cultural products, and thereby to contribute to cultural development.

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FAQ/What is “industrial property (right)”?

 

{FAQ} What is “industrial property (right)”?

Although other types of intellectual property also exist, intellectual property, in general, has been divided into two branches: one is “industrial” property, which includes among others inventions (patents), trademarks and industrial designs; the other is “copyright,” which protects literary and artistic works*[1].

A patent is an exclusive right granted for an invention, which is a product or a process that provides a new way of doing something, or offers a new technical solution to a particular problem. Protection of inventions under patent law does not require that the invention be represented in a physical form.

On the other hand, copyright law protects only the form (embodiment) of expression of ideas, not the ideas themselves. Copyright law protects the author of literary and artistic works against those who copy or otherwise take and use the form in which the original work has been expressed by the author. Legal protection under copyright law prevents only unauthorized use of the expressions of ideas.

Protection under patent law gives an inventor a monopoly right in the exploitation of an invention for certain duration, and so the invention is supposed to be made officially known to the public; the protected invention must be disclosed in an official register, open to the public. In contrast, under copyright law, official registration of works is, in principle, not a condition for protection.

 

*[1] Literary and artistic works include books, music, works of fine arts such as paintings and sculptures, and technology-based works such as computer programs and electronic databases.

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FAQ/What is “property right”?

 

{FAQ} What is “property right”?

In order to get a better understanding of the term of “intellectual property right,” it would be useful to approach in terms of the notion of “property right” in general.

The most important feature of property right is that the owner of the property may use it as he/she wishes; nobody else can lawfully use his/her property without his/her authorization (permission). The property owner may be a human being (a natural person) or a legal entity, such as a corporation.

Roughly speaking, there are three types of property. One is property consisting of movable things, such as a  car or furniture, sometimes known as “movable property.” No one except the owner of the thing(s) can use the item(s) of property. Such legal right as this is referred to as “exclusive right,” because only the owner has the exclusive prerogative to use his/her property. The rights owner also may authorize others to use his/her own property, but without such authorization, use by others is illegal.

The second type of property is immovable property, or sometimes known as “real property.” Land and things permanently fixed on it, such as houses, are immovable property, because they cannot be lifted or moved. The owner of the real property also has the exclusive right to the property.

The third type of property is sometimes called “intellectual (intangible) property,” which protects the creations of the human mind, or the human intellect. As mentioned above, the owner of the intellectual property has the exclusive right likewise.

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FAQ/What is “intellectual property right”?

 

{FAQ} What is “intellectual property right”?

According to the Intellectual Property Basic Act, the term "intellectual property right" means a patent right, a utility model right, a plant breeder's right, a design right, a copyright, a trademark right, and so on. That is, Intellectual property rights are rights given to a person who has created something through intellectually creative activities. Copyright is one of these.

Intellectual property rights guarantee that the created work is not to be exploited by others without authorization (permission) from rights holders. “Intangible property right” and “intellectual ownership right” are sometimes used to refer to the same rights as intellectual property rights.

Generally, to be legally secured, industrial property rights such as a patent right and a trademark right require application and registration. On the other hand, copyrights do not require such steps and are granted automatically to the author once the work has been created, which is often called the “non-formality rule.”

 

(ref.) Art. 2(2) of Intellectual Property Basic Act

The term "intellectual property right" as used in this Act means a patent right, a utility model right, a plant breeder's right, a design right, a copyright, a trademark right, a right that is stipulated by laws and regulations on other intellectual property or right pertaining to an interest that is protected by laws.

 

(ref.) Art.2(ⅷ) of Convention Establishing WIPO

“Intellectual property” shall include the rights relating to:

- literary, artistic and scientific works,

- performances of performing artists, phonograms, and broadcasts,

- inventions in all fields of human endeavor,

- scientific discoveries,

- industrial designs,

- trademarks, service marks, and commercial names and designations,

- protection against unfair competition,

and all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields.

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FAQ/What is “intellectual property”?

 

{FAQ} What is “intellectual property”?

The copyright system, or the copyright legislation is part of the body of laws known as “intellectual property law,” which protects the interests of creators by giving them certain property rights over their creations. These rights of property are widely accepted under the laws of most countries in order to stimulate human intellectual creativity and to make the fruits of such creativity available to the public. Also, a concerted approach to intellectual property rights allows international trade in goods and services protected by such rights to flourish on the basis of a smoothly functioning system of harmonized national laws.

 

Nowadays, the term (expression) of “intellectual property (right)” is used increasingly broadly so as to refer to all creations of the human mind. For example, article 2 (viii) of the Convention Establishing the World Intellectual Property Organization does not define intellectual property as such, but gives the following list of the subject matter protected by intellectual property rights: literary, artistic and scientific works; performances of performing artists, phonograms, and broadcasts; inventions in all fields of human endeavor; scientific discoveries; industrial designs; trademarks, service marks, and commercial names and designations; protection against unfair competition; and “all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields.”

 

The most direct source of protection for intellectual property is respective national laws. Other sources include legal instruments of multilateral agreements, such as the Berne Convention and the Agreement on the Trade Related Aspects of Intellectual Property Rights (the TRIPS Agreement).

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FAQ/What is a “derivative work”?

 

{FAQ} What is a “derivative work”?

A “derivative work” is a work based upon or derived from one or more pre-existing works (original works) which is created by translating, musically arranging or artistically recasting original works, or dramatizing, fictionalizing or otherwise adapting original works. Such a derivative work is itself protected as a new (original) “work” as long as it includes so-called “new creativity (originality)” which can be distinguished from creativity of the pre-existing work(s). Therefore, making some minor alterations to the pre-existing work will not qualify as a derivative work.

It should be noted that the protection of a derivative work does not affect the rights of the author of the original work.

 

(ref.) Art.2(3) of Berne Convention

Translations, adaptations, arrangements of music and other alterations of a literary or artistic work shall be protected as original works without prejudice to the copyright in the original work.

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FAQ/What works are protected in Japan?

 

{FAQ} What works are protected in Japan?

Copyrights (economic rights) and moral rights initially vest in an author who creates a ”work.” Therefore, it’s of great importance whether or not a work falls under a “work” defined under the Copyright Act.

The term “a work (works)” is used to refer to a wide range of intellectual creations, from novels to architecture, computer programs, and more. Specifically, works commonly protected by copyright in Japan include (examples of copyrightable works include) the following:

▷ novels, scenarios, articles, lectures, and other literary works;

   [Note] As for a slogan, a catchphrase, or other short phrase, copyright protection may or may not be available, depending on whether they contain sufficient creativity.

▷ musical works;

▷ works of choreography and pantomime;

▷ paintings, woodblock prints, sculptures, and other works of fine art (artistic works);

   [Note] An "artistic work" includes a work of artistic craftsmanship.

   [Note] As for a work of applied art, copyright protection may or may not be available, depending on whether it contains the sufficient nature of beauty as opposed to utility (usefulness).

▷ works of architecture;

▷ maps and other diagrams of an academic nature, such as plans, charts, and models;

▷ cinematographic works;

▷ photographic works; and

▷ works of computer programming.

 

On the other hand, the following are not copyrightable:

▷ simple data, mere facts, miscellaneous news of the day, and a scientific discovery;

▷ an idea, a concept, a method, a system, a procedure, a process, and a principle;

▷ an imitation of a work;

▷ an industrial product;

▷ a title or name of a work;

▷ typeface; and so on.

 

(ref.) Art.2(8) of Berne Convention

The protection of this Convention shall not apply to news of the day or to miscellaneous facts having the character of mere items of press information.

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FAQ/What is a work?

 

{FAQ} What is a work?

Under the copyright Act, the term “work” means “a creatively produced expression of thoughts or sentiments that falls within the literary, academic, artistic, or musical domain.”

Given the definition of a “work” mentioned above, a work that is protected must meet all of the requirements below:

① A work must be a creation in which “thoughts or sentiments are expressed.”

(e.g.) Simple data, mere facts, and discoveries are excluded.

② A work must be “an expression of thoughts or sentiments.”

(e.g.) Ideas, concepts, and methods are excluded.

③ A work must be a creation in which thoughts or sentiments are expressed “in a creative way.”

(e.g.) Imitations and bootlegs are excluded.

④ A work must be “within the literary, scientific, artistic, or musical domain.”

(e.g.) Industrial products are excluded.

 

(ref.) Art.2(Scope of Copyright Protection) of WIPO Copyright Treaty

Copyright protection extends to expressions and not to ideas, procedures, methods of operation or mathematical concepts as such.

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FAQ/What is a “joint work”?

 

{FAQ} What is a “joint work”?

A "joint work" means a work created by two or more persons whose contributions to the work cannot be separated, consequently each part of which cannot be used individually (independently). A “joint work” is created by two or more authors, usually with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole.

Each of the persons who are substantially engaged in creating a joint work is an “author,” and the relationship between them establishes co-ownership of the joint work. Therefore, when they are in joint ownership of a joint work, each owner of copyrights to the joint work cannot exercise his/her own right without the unanimous agreement of all the co-owners (See Art.65(2)). So, if you wish to use a joint work, more careful attention should be paid to their permission from the “joint copyright” owners.

 

(ref.) Art. 65(2) of Copyright Act

A joint copyright may not be exercised without the unanimous agreement of all the co-owners.

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FAQ/Who is the author of a cinematographic work?

 

{FAQ} Who is the author of a cinematographic work?

The author of a cinematographic work is “the person that makes a creative contribution to the overall shaping (making) of the work in charge of its production, direction, stage direction, shooting, art direction, etc.”

It is generally supposed that there are a lot of cases where the producer or the (film, anime, game) director of a cinematographic work becomes the author of the work.

As for an author of its original novel and/or scenario that are adapted into the cinematographic work, or an author of music or other works (e.g. an art work) that are reproduced in the cinematographic work, they are excluded from the category of “the author of a cinematographic work.”

You should remember that copyrights (economic rights) to a cinematographic work may initially belong to the producer of the cinematographic work*[1], depending on cases. (See Art.29(1)).

 

*[1] A “producer of a cinematographic work” means the person, or the legal entity, who or which takes the initiative in, and has the responsibility for, the production of a cinematographic work.

 

(ref.) Art. 29(1) of Copyright Act

If the author of a cinematographic work … has promised the producer of the cinematographic work that the author will participate in its production, the copyrights to the cinematographic work belong to the producer of the cinematographic work.

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FAQ/Who owns copyright to a work?

 

{FAQ} Who owns copyright to a work?

The copyright (economic rights plus moral rights) to a work initially belongs to the author who has created the work; the first owner of copyright to a work is, in principle, always the original creator of the work. There are, however, some exceptions to this rule. For example, under certain legal requirements, both economic rights (copyrights) and moral rights to a work may automatically vest in a company employing the creator (See Art.15(1)). Also, as for a cinematographic work, the copyrights (economic rights) to the work may initially belong to the producer of the cinematographic work (See Art.29(1)).

 

(ref.) Art. 15(1) of Copyright Act

For a work (except a work of computer programming) that an employee of a corporation or other employers (hereinafter in this Article such a corporation or other employers are referred to as a "corporation, etc.") makes in the course of duty at the initiative of the corporation, etc., and that the corporation, etc. makes public as a work of its own authorship, the author is the corporation, etc., so long as it is not stipulated otherwise in a contract, in employment rules, or elsewhere at the time the work is made.

 

(ref.) Art. 29(1) of Copyright Act

If the author of a cinematographic work … has promised the producer of the cinematographic work that the author will participate in its production, the copyrights to the cinematographic work belong to the producer of the cinematographic work.

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FAQ/Who is the author?

 

{FAQ} Who is the author?

The term “author” means “a person who creates a work.”

The author of a work enjoys both moral rights and copyrights at the same time when he/she creates a work. These author’s rights to a work initially belongs to the author who has created the work and such an author of the work is usually a natural person (living human being). However, as for a work that is created by an employee of a company, there is an exception in which the company becomes an author, subject to certain legal requirements (See Art.15).

 

(ref.) Art. 15(1) of Copyright Act

For a work (except a work of computer programming) that an employee of a corporation or other employers (hereinafter in this Article such a corporation or other employers are referred to as a "corporation, etc.") makes in the course of duty at the initiative of the corporation, etc., and that the corporation, etc. makes public as a work of its own authorship, the author is the corporation, etc., so long as it is not stipulated otherwise in a contract, in employment rules, or elsewhere at the time the work is made.

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FAQ/Can I buy and sell copyright?

 

{FAQ} Can I buy and sell copyright?

Yes.

Any or all of the copyright owner’s exclusive rights, or parts of those rights, can be transferred (See Art.61(1))*[1][2].

An oral contract (a contract agreed verbally) of the transfer (assignment) is legally effective. However, because the existence of such a contract can be difficult to prove, the transfer of copyrights is generally made in writing and signed by the owner of the rights assigned or the owner’s authorized agent.

 

(ref.) Art. 61(1) of Copyright Act

Copyrights may be transferred in whole or in part.

 

*[1] Although “registration of transfer of copyright” is not required to make the transfer legally valid between parties concerned, you should know that buying and selling copyrights entails a risk of so-called “double transfer” (you can take advantage of the system of “registration of transfer of copyright” in order to reduce the risk.).

*[2] As for moral rights of an author, you cannot buy and sell these rights.

 

[Note] You can bequeath copyrights by will.

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FAQ/How long do copyrights last?

 

{FAQ} How long do copyrights last?

Copyrights have a time limit. The duration of copyrights (economic rights) is the life of the author plus 70 years after the author’s death. If the work is a joint work with two or more authors, the duration lasts for 70 years after the last surviving author’s death.

After the time limit, the work is said to be “in the public domain” because the term of copyright protection has expired and the work no longer has its right owner. Once a work has been in the public domain, the general public can use or exploit the work without any authorization (permission) from the former right owner.

It should be noted that there are some exceptions to this basic duration of protection. For example, as for the duration of protection for a cinematographic work, the copyright lasts for 70 years after the cinematographic work is made public, and if the cinematographic work has not been made public within the 70 years of its creation, the copyright lasts for 70 years after the creation of the cinematographic work.

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FAQ/What are “moral rights”?

 

{FAQ} What are “moral rights”?

Independently of an author's copyrights (economic rights), and even after the transfer of copyrights, the author has certain rights to safeguard his/her own non-economic (personal) interests; “Right to Make a Work Public,” ”Right of Attribution,” and ”Right to Integrity.”

Moreover, under the Copyright Act, the exploitation of a work in a way that is prejudicial to the honor or reputation of the author is deemed to constitute an infringement of the author's moral rights (Art.113(11)).

 

▷ Right to Make a Work Public (Art.18(1));

The author of a work which has not been made public yet has the right to make his/her work available to the public or present his/her work to the public.

 

▷ Right of Attribution (Art.19(1));

The author of a work has the right to decide whether to use his/her true name or pseudonym to indicate the name of the author on the original work or on the work at the time when a work is made available or presented to the public. Also, the author has the right to decide that the author's name should not be indicated.

 

▷ Right to Integrity (Art.20(1));

The author of a work has the right to preserve the integrity of his/her work and its title, and is not to be made to suffer any alteration, mutilation, or other modification thereto that is contrary to the author's intention.

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FAQ/What are the “author’s rights”?

 

{FAQ} What are the “author’s rights”?

Under the Copyright Act, the author of a work enjoys both “moral rights” and “copyrights.” That is, the “author’s rights” mean two different types of rights. The former (moral rights) are rights to safeguard non-economic (personal) interests of the author, while the latter (copyrights) are rights to protect economic (financial) interests of the author.

 

Specifically, the moral rights are composed of the following:

▷ Right to Make a Work Public(Art. 18(1));

▷ Right of Attribution(Art. 19(1)); and

▷ Right to Integrity(Art. 20(1)).

 

On the other hand, the copyrights are composed of the following:

▷ Right of Reproduction(Art.21);

▷ Stage Performance Right and Musical Performance Right(Art.22);

▷ Right of On-Screen Presentation(Art.22-2);

▷ Right to Transmit to the Public(Art.23);

▷ Recitation Right(Art.24);

▷ Exhibition Right(Art.25);

▷ Distribution Right(Art.26);

▷ Right of Transfer(Art.26-2);

▷ Right to Rent Out(Art.26-3);

▷ Translation Right, Adaptation Right, and Other Rights(Art.27); and

▷ Rights of the Original Author in Connection with the Exploitation of a Derivative Work(Art.28).

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FAQ/What kind of activity is prohibited by copyright?

 

{FAQ} What kind of activity is prohibited by copyright?

Copyrights are composed of various “branch rights” (copyrights are sometimes called “a bundle of rights”), so the copyright owner has the exclusive right to use a work according to the branch rights. As a result, doing the following activities without authorization (permission) constitutes copyright infringement;

▷ Reproducing a work.

▷ Publicly giving a stage performance or musical performance of a work.

▷ Publicly presenting a work via an on-screen presentation.

▷ Transmitting a work to the public.

▷ Publicly communicating, through a receiver, a work transmitted to the public.

▷ Publicly Reciting a literary work.

▷ Publicly exhibiting the original work (this refers to an artistic work or an unpublished photographic work).

▷ Distributing copies of a cinematographic work.

▷ Making a work (except a cinematographic work) available to the public through the transfer of the original work or a copy of the work.

▷ Creating a derivative work*[1].

 

*[1] The author of the original work underlying a derivative work has the same rights as the author of the derivative work has regarding the exploitation of the derivative work.

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FAQ/What is copyright?

 

{FAQ} What is copyright?

Copyright is a form of protection provided by the law of Japan―i.e. the Copyright Act―to an author of a work.

You should know that there are two types of rights of the author under the Copyright Act (see Art.17(1)); “copyrights” and “moral rights.”

Although the term “copyright” is often broadly defined as all right(s) which an author or a creator of a work enjoys about his/her work, more correctly, copyrights mean economic rights by which economic (financial) interests of the author are protected. On the other hand, “moral rights” mean rights by which non-economic (personal) interests of the author are safeguarded. “Copyrights” are distinguished from “moral rights.”

Copyrights mentioned above allow the rights holder to derive financial rewards from the use of his/her work by others.

 

(ref.) Art. 17(1) of Copyright Act

The author of a work enjoys the rights provided for in paragraph (1) of the following Article; Article 19, paragraph (1); and Article 20, paragraph (1) (hereinafter referred to as the "moral rights of an author"), as well as the rights provided for in Articles 21 through 28 (hereinafter referred to as "copyrights").

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