Newsletter

December 2023 issue [Legal Affairs] Newsletter

December issue [Legal Affairs] Newsletter

New legal issues surrounding content on the Metaverse

Over the past two months, our newsletter has provided detailed information on the ``relaxation of procedures for applying exceptions to loss of novelty'' that are being considered by the Design Examination Standards Working Group. At the 5rd Design Examination Standards Working Group held on September 9, 29, it appears that the ``Organization of points of contention regarding new legal issues surrounding content on the Metaverse'' was distributed as a reference material. .

In this newsletter, we will introduce the issues discussed in the above-mentioned handouts regarding the protection of rights to content on the Metaverse, with a focus on design rights.

back ground 

(From "Organization of points of contention regarding new legal issues surrounding content on the Metaverse")

 In recent years, users have been selling ``practical goods'' used by their avatars in the Metaverse, and real-world companies have begun to open virtual stores in the Metaverse and sell products in both real and virtual environments. Identical/similar designs are being used intermingling between reality and virtual space, such as real product designs being used in virtual space and designs in virtual space being transferred to real products.

 Under these circumstances, it became necessary to sort out the points at issue regarding the protection of real design rights holders and the protection of creations in virtual space.

Issues/issues

(2-1) Imitation of real product design

In the Metaverse, there have been cases in which real product designs are used without permission, such as virtual items being sold that imitate the distinctive designs of real products. In such cases, consideration should be given to the scope of the design right for the design in question and how rights should be protected.

(2-2) Business development in both real and virtual

 Business models are also emerging, such as selling both real and virtual practical products based on the same design. The issue is how to protect the designs of these products.

Current status of system/handling, etc.

(3-1) Protection by design rights

(3-1-1) Protection as a design of articles, etc.

 ① If the manufacture, construction, use, transfer, etc. of an "article" or "building" related to a registered design is carried out without the permission of the right holder, it will constitute an infringement of the design right. However, articles and virtual objects (3D data) have different functions and uses, and even if a registered design is implemented in a virtual space, there is a high possibility that it will not be determined to be an implementation of the registered design. Therefore, even if the virtual object is used without permission, it is likely that it will be determined that there is no infringement of design rights.

(3-1-2) Protection as an image design

 ① The only images that are subject to protection under the Design Act are ① images that are used to operate a device (operation images), and ② images that are displayed as a result of the device performing its functions (display images). Therefore, an image (content) that is a virtual item or the like used by an avatar does not constitute a design.

 ② Since protection by design rights extends to similar designs regardless of whether or not there is reliance on them, there are concerns that if the scope of protection is extended to content, it will have a chilling effect on the creative activities of creators.

 ③ Virtual items, etc. are not subject to protection as "image designs" even if they are original designs. Therefore, with regard to virtual items, etc., in order to counter design imitation in virtual space, it is impossible to obtain design registration for both the article, etc. and the image.

(3-2) Copyright protection

 ① Designs for practical products (applied art) are difficult to recognize as copyrighted works, so if a design for an actual practical product is denied copyrighted property, even if the design is used in a virtual space, it cannot be considered a copyrighted work. rights are not protected.

 ② It is anticipated that virtual items, etc., which are practical objects in the virtual world, may be deemed not to be applied art and may be affirmed as copyrighted works.

(3-3) Protection under the Unfair Competition Prevention Act

① For protection under the Unfair Competition Prevention Act's product form imitation regulations, the object of protection must be a tangible object. Therefore, even if you create and sell virtual objects that are dead copies of other people's designs, there is a high possibility that the regulations will not apply to you.

Direction of response

 ① Unfair Competition Prevention Act

 It would be appropriate to make it possible to regulate the act of providing imitative products on the network by making the act of offering imitative products on the network subject to regulation, and by including intangible objects in the term ``product''.

② Response under the Design Act

 Because there are concerns that this may have a chilling effect on the creative activities of creators, it is appropriate to carefully consider this as a medium- to long-term issue.

③Continuous understanding and consideration

 Regarding the extent to which copyright protection can extend, it is desirable to first clarify the concept and disseminate it appropriately, taking into account the trends in court precedents regarding the copyrighted property of applied art and the accumulation of practical experience.

 

 

Japan Newspaper Association's ``Intellectual Property Rights Study Group in the AI ​​Era'' requests revision of copyright law

 On November 2023, 11, the Japan Newspaper Association, a general incorporated association, submitted opinions regarding intellectual property rights in the age of AI in response to a request for opinions conducted by the Cabinet Office.

The 2018 revision of the Copyright Act introduced the provision of ``Article 30-4'' that allows copyrighted works to be used for AI learning without the permission of the copyright holder. Although the proviso to the same article states that it cannot be used if it "unreasonably harms the interests of the copyright holder," the scope of "acts that unduly harm" is not clear, and under current copyright law, media companies is used in the learning process of the generative AI, and AI developers and service providers are given a free ride without compensation for news content created by and for which they have legal rights such as copyright.

 In light of this situation, the Japan Newspaper Association expressed the following opinion to the Japanese government (Cabinet Office Intellectual Property Strategy Promotion Secretariat).

(Author's summary)

From the perspective of protecting the rights of copyright holders, the government should expedite the development of appropriate rules that are commensurate with the rapid evolution of generative AI technology, including amending copyright laws.

Specifically, it is necessary to review Article 30-4 of the Copyright Act and, at the very least, create a system that allows copyright holders to refuse AI-based "learning," or to obtain permission before using it. In addition, the scope of the proviso ``acts that cause undue harm'' should be clarified.

 

(Author's summary)

News content is valuable intellectual property that newspapers and communication companies spend a great deal of effort and various costs to create. If general consumers are satisfied with search results and answers from interactive AI and search engines such as "Bing AI" and "Google SGE" and do not access the original site, news organizations will have a significant opportunity to recover costs. Deprived.

If the unauthorized use of data generated by AI damages news organizations' revenue opportunities and makes it difficult to continue providing high-quality news content, the people's "right to know" will be impeded.

In addition to cases in which unauthorized use of news content by generated AI is suspected, cases in which answers with factual errors were generated based on news content, and answers based on pirated sites suspected of plagiarizing articles. There have also been confirmed cases where a .

If news content is not properly provided to the people, false information spreads, and AI that has learned false information spreads further false information, there is a risk that the foundations of democracy will be shaken and there will be a negative impact on elections, etc. .

Additionally, news companies may provide article databases for a fee, but recently, article data collections (corpuses) for information analysis that can be used for AI development are also on sale.

The data collection (data accumulation) of news content using generated AI is in conflict with the article data sales market operated by newspaper companies, and the proviso to Article 30-4 of the Copyright Act states, ``Unfairly harming the interests of copyright holders.'' This may apply to "cases".

Reference URL:https://www.kantei.go.jp/jp/singi/titeki2/ai_kentoukai/gijisidai/dai3/siryou2.pdf

 

[reference]

https://www.pressnet.or.jp/statement/20231106_1.pdf

 

 

 

 

The Ministry of Agriculture, Forestry and Fisheries signs a “Japan-U.S. Review Cooperation Memorandum” regarding plant variety protection with the U.S. Department of Agriculture

 On October 2023, 10, the Ministry of Agriculture, Forestry and Fisheries and the United States Department of Agriculture signed a ``Japan-U.S. Review Cooperation Memorandum'' regarding the protection of plant varieties. As a result, the United States is now able to use the results of Japan's variety registration examination when examining variety applications filed from Japan to the United States.

 Excellent varieties bred in Japan are highly evaluated in overseas export markets. In order to maintain this reputation, it is necessary to take measures to prevent the excellent varieties bred in Japan from going overseas and being propagated without permission. Border measures are important when exporting, but in order to deal with infringement of plant varieties in foreign countries, it is especially important to register the varieties in the country concerned.

 When registering overseas varieties, you may be required to submit seedlings for examination, and in addition to exporting the seeds, you also need to grow them to a state suitable for examination after export. The hurdles are higher than those for registration applications.

 Meanwhile, in Japan, in order to promote variety registration overseas, under the framework of the International Convention for the Protection of New Varieties of Plants (UPOV(*) Convention), member countries examine varieties applied by partner countries. In such cases, we are promoting ``examination cooperation'' that utilizes the examination results in the partner country, promoting smooth examinations and prompt registration.

* UPOV: INTERNATIONAL UNION FOR THE PROTECTION OF NEW VARIETIES OF PLANTS

 With the recent conclusion of the Japan-U.S. Memorandum of Cooperation in Examination, there are now 16 countries in total. In the future, it is expected that the protection of excellent Japanese varieties will be speeded up by shortening the examination period in the United States.

Currently, the countries and regions with which we have concluded memorandums are as follows.

Reference URL: https://www.maff.go.jp/j/press/yusyutu_kokusai/syubyo/attach/pdf/231027-1.pdf

 

[reference]

https://www.maff.go.jp/j/press/yusyutu_kokusai/syubyo/231027.html

 

 

Newsletter translated into English

New Legal Challenges Concerning Content, etc. in the Metaverse

For the past two months, we have reported in our newsletters in detail on the “Relaxation of Application of Exceptions to Lack of Novelty” which is under consideration by the Working Group on Design Examination Criteria. At the 23rd meeting of the Working Group on Design Examination Criteria held on September 29, 2023, “Categorization of Issues Concerning New Legal Challenges Regarding Contents, etc. in the Metaverse” was distributed as a reference material.

In this newsletter, we would like to introduce some of the issues discussed in the above reference material, with a focus on design rights, regarding the “protection of rights for content, etc. in the metaverse”.

background

(from the “Categorization of Issues Concerning New Legal Challenges Regarding Contents, etc. in the Metaverse”)

In recent years, companies in the real world have emerged that sell “practical items” used by avatars in the metaverse, or that open virtual stores in the metaverse and sell products both in the real and virtual worlds. Same/similar designs are used across the real world and the virtual space, as for example real-world product designs are used in the virtual space, and designs in the virtual space are used for real-world products.

Under these circumstances, it was necessary to clarify the issues regarding the protection of design owners in reality and the protection of creations in virtual space.

Issues and discussion points

(2-1) Design imitation of real products

In the metaverse, there have been cases of unauthorized use of real product designs. For example, virtual items that imitate the distinctive design of a real product are sold. In such cases, the scope of design rights pertaining to such designs and how the rights should be protected needs to be examined.

(2-2) Business development in both real and virtual worlds

Business models such as selling both real and virtual products based on the same design have emerged. The issue is how the design of these products will be protected.

Current status of systems, handling, etc.

(3-1) Protection through design right

(3-1-1) Protection as a design of an article, etc.

(1) The manufacture, construction, use, transfer, etc. of an “article” or “building” pertaining to a registered design without the right holder's permission constitutes an infringement of the design right. However, the functions and uses of an article and a virtual object (3D data) are different, and even if a registered design is implemented in a virtual space, it is highly likely that it will not be judged an implementation of the registered design. Therefore, it is assumed that even if a virtual object is implemented without permission, it is highly likely that design infringement will not be deemed to have occurred.

(3-1-2) Protection as an image design

(1) The Design Law protects only (a) those images that are used to operate the device (operation images) and (b) those that are displayed as a result of the device performing its function (display images). Therefore, images ( contents) that are virtual items, etc. used by avatars do not constitute a design.

(2) Since protection through design extends to similar designs irrespective of dependency, there are concerns that widening the scope of protection to contents may have an atrophying effect on creators' creative activities.

(3) Virtual items, etc. are not subject to protection as “image designs” even if they are original designs. Therefore, regarding virtual items, etc. it is not possible to register design for both the article, etc. and the image of as a method to counter design imitations in the virtual space.

(3-2) Protection by copyright

(1) With regard to designs for practical products (applied art), if copyrightability is denied for the design of a practical product in the real world as copyrightability is unlikely to be recognized for such products, the design is not subject to copyright protection even if it is used in a virtual space.

(2) It is assumed that there may be cases in which virtual items, etc., which are practical articles in the virtual world, are affirmed as copyrightable because they do not fall under the category of applied art.

(3-3) Protection under the Unfair Competition Prevention Law

(1) Protection under the Unfair Competition Prevention Law's regulation on product form imitation requires that the object to be protected is a tangible object. Therefore, even if a virtual object that is a dead copy of another person's design is created, sold, etc. , it is highly likely that the said regulation will not apply.

Direction of Response

 (i) Unfair Competition Prevention Law

It is appropriate to make the act of providing product form imitations on a network subject to regulation, and to make the act of providing product form imitations on a network regulable, for example, by including inanimate objects in “products”.

(2) Measures under the Design Law

It is appropriate to carefully consider this issue as a medium- to long-term issue, as there are concerns that it may have an atrophying effect on creators' creative activities.

(3) Continuous monitoring and examination

It is desirable to first organize the concept of how far the protection by copyright can extend, based on the trend of court precedents on the copyrightability of applied arts and the accumulation of practical experience, and then make it known to the public in an appropriate manner .

 

Request for Revision of the Copyright Law at the Japan Newspaper Publishers Association’s “Study Group on Intellectual Property Rights in the AI ​​Era”

On November 2, 2023, the Japan Newspaper Publishers & Editors Association submitted its opinion on intellectual property rights in the age of AI in response to a request for opinions issued by the Cabinet Office.

The 2018 revision of the Copyright Act established a provision in “Article 30-4”, which states that copyrighted works can be used for AI learning without the permission of the copyright holder. Although the proviso of the same article states that the use cannot be made if it “unreasonably harms the interests of the copyright holder”, the scope of “unreasonably harming acts” is not clear. Under the current Copyright Law, news content created by news companies and for which they have legal rights such as copyright can be used in the learning process of the generative AI, and AI developers and service providers are getting a free ride (free ride) without compensation.

In light of this situation, the Japan Newspaper Publishers & Editors Association expressed the following opinions to the Japanese government (Intellectual Property Strategy Headquarters, Cabinet Office).

(summarized by the author)

From the viewpoint of protecting the rights of copyright holders, the government should hasten the development of appropriate rules commensurate with the rapid evolution of generative AI technology, including the revision of the Copyright Act.

Specifically, “Article 30-4” of the Copyright Law should be revised to at least allow copyright holders to refuse “learning” by AI, or to establish a mechanism to obtain permission when using AI. In addition, the scope of the proviso “ “unreasonably harmful acts” should be clarified.

(Author’s summary)

News contents are valuable intellectual property created by newspapers and telecommunications companies at great effort and at various costs. If the general public is satisfied with search results and answers provided by interactive AIs and search engines such as “Bing AI” and “Google SGE” that utilize AIs, and do not access the original sites, news organizations will be severely deprived of opportunities to recover their costs.

Unauthorized use of data generated by AI will undermine profit-making opportunities for news organizations, and if it becomes difficult for them to continue providing quality news content, the public's “right to know” will be hampered.

In addition to cases of suspected unauthorized use of news contents by generative AI, there have also been confirmed cases where answers with erroneous facts were generated based on news contents, and where answers were generated based on pirate suspected websites of plagiarizing articles.

If news content is not properly provided to the public, false information spreads, and AI that has learned from false information further spreads false information, the foundation of democracy will be shaken, and there is even a risk of adverse effects on elections, etc.

Furthermore, news companies may provide article databases for a fee. On the other hand, recently, collections of article data (corpus) for information analysis, which can also be used for AI development, has been sold.

Data collection (data accumulation) of news contents by generated AI clashes with the article data sales market handled by newspaper companies, and may fall under the proviso of “Article 30-4″ of the Copyright Law”, ie “unreasonably harms the interests of the copyright holder”.

Reference: https://www.kantei.go.jp/jp/singi/titeki2/ai_kentoukai/gijisidai/dai3/siryou2.pdf

 

[Reference]

https://www.pressnet.or.jp/statement/20231106_1.pdf

 

MAFF Signs “Japan-US Memorandum of Understanding for Cooperation in Plant Variety Protection Examinations” with US Department of Agriculture (USDA)

 On October 27, 2023, a “Japan-US Memorandum of Understanding for Cooperation in Examination” was signed between the Ministry of Agriculture, Forestry and Fisheries (MAFF) and the US Department of Agriculture (USDA) regarding the protection of plant varieties. This allows the US to use the results of Japanese variety registration examinations when examining varieties applied for in the US from Japan.

 Superior varieties bred in Japan are highly regarded in overseas export markets. In order to maintain this reputation, it is necessary to take measures to prevent superior varieties bred in Japan from leaking overseas and being propagated without permission. While control measures at the time of export are important, it is particularly important that variety registration be carried out in foreign countries in order to deal with infringement of the variety in those countries.

 Overseas variety registration is a more difficult hurdle than domestic variety registration in terms of procedures and costs, as the applicant may be required to submit seeds and seedlings for examination, and the seeds and seedlings must be grown to a suitable condition for examination after export.

 Under the framework of the International Convention for the Protection of New Varieties of Plants (UPOV Convention), Japan is promoting “examination, cooperation” in which member countries use the examination results of the variety applied for in other countries for the purpose of facilitating the smooth examination and prompt registration of varieties overseas.

 The “Japan-US Memorandum of Understanding for Cooperation in Examination” concluded on this occasion brings the total number of countries that are parties to the MOU to 16. It is expected that the MOU will speed up the protection of Japanese superior varieties by shortening the examination period in the US

The countries and regions that have concluded the MOU are as follows:

Reference: https://www.maff.go.jp/j/press/yusyutu_kokusai/syubyo/attach/pdf/231027-1.pdf

 

[Reference]

https://www.maff.go.jp/j/press/yusyutu_kokusai/syubyo/231027.html

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