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TOKYO 105-5129,JAPAN
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Copyright System in Japan

1. Works and Authors

Under the Japanese copyright system, novels, paintings, music, cinematographs, and the like that are produced through creative activities are defined as “works”, and a person who creates a work is defined as an “author”. The Japanese Copyright Act has been developed as a legal system for works and authors.

2. Works

(1) Definitions

Article 2(1)(i) of the Japanese Copyright Act defines the term “work” as follows:

“(i) ’work’ means a production in which thoughts or sentiments are creatively expressed and which falls within the literary, academic, artistic or musical domain;”.

Among various productions that humans create, only productions that fall under the above definition can be protected as “works” by the Japanese Copyright Act.

However, the definition is so abstract that it may be difficult to specify what is to be deemed as a “work”. Article 10(1) of the Japanese Copyright Act itemizes examples of works as follows:

  • (i) novels, scenarios, articles, lectures, and other literary works;
  • (ii) musical works;
  • (iii) works of choreography and pantomime;
  • (iv) paintings, woodblock prints, sculptures, and other works of fine art;
  • (v) works of architecture;
  • (vi) maps and other diagrammatic works of an academic nature, such as plans, charts, and models;
  • (vii) cinematographic works;
  • (viii) photographic works;
  • (ix) works of computer programming.

These are mere examples of works. Even though it is unclear whether or not one production is encompassed in the examples (or the production is simply not encompassed in the examples), the production is protected as a work as long as it falls under the definition of Article 2(1)(i). However, special provisions of the Japanese Copyright Act may be applied to a specific work which falls under items of Article 10(1). In a case where such special provisions are to be applied, it is necessary to determine under which item of Article 10(1) the production falls.

(2) Specific requirements

Any productions need to comply with four requirements so as to be protected as works under the Japanese Copyright Act. That is, a protected work must be a work in which (a) “thoughts or sentiments” (b) are “expressed” (c) with “creativity”, and which (d) “falls within the literary, academic, artistic or musical domain.”

(a) To include “thoughts or sentiments”

  • The Japanese Copyright Act is intended to contribute to the development of culture through protection of works. Therefore, only productions derived from mental activities of humans should be protected under the Japanese Copyright Act. The term “thoughts or sentiments” as used herein means any ideas or feelings, and does not necessarily mean sophisticated ones.
    On the other hand, objects with no relation to humans are not deemed as works that are protected under the Japanese Copyright Act, even though the objects deserve aesthetic appreciation.

(b) To be “expressed”

  • In order to produce a work, any thoughts or sentiments first need to be expressed by the author in such a manner that can be recognized by others. Any information that is unrecognizable to others is unclear, and therefore does not deserve legal protection.
    This leads us to an important way of thinking. That is, only objects expressed by authors can be protected as works, but the ideas (thoughts, sentiments, or the like) from which the objects were derived cannot be protected as works. This principle is called “idea-expression dichotomy”.
    Since the Japanese Copyright Act is based on this principle, one work that is identical in fundamental idea or concept to another work may not infringe the another work if the two works are different in specific way of expression.

(c) To have “creativity”

  • Copyrights are provided so as to encourage intellectual and creative activities of humans. Therefore, even if a work is created through hardships and efforts (for example, if a work is simply created by collecting information and arranging it in time sequence), the work may not be protected unless it is deemed that the work is created as a result of intellectual and creative activities. That is, every work needs creativity.
    However, the creativity requirement is not so strictly determined, and it is said that any expression of an author’s individuality will satisfy this requirement. For example, creativity may be admitted even in a painting drawn by a kid with crayons, a conventional diary, and the like.
    This is contrary to the Japanese Patent Act which strictly requires novelty and an inventive step.

(d) To fall within the literary, academic, artistic or musical domain

  • Unlike the Japanese Patent Act and the Japanese Design Act that are provided so as to protect industrial products, Copyrights are provided so as to protect cultural products.
    This requirement specifies four domains, i.e., the literary domain, the academic domain, the artistic domain, and the musical domain. However, it is unnecessary to specify which domain a production particularly falls under for making the production protected as a work. If a production is deemed to be a cultural product, the production will be protected as a work.

3. Authors

(1) The principle of authors and exceptions

Article 2(1)(ii) of the Japanese Copyright Act provides that the term “author” means “a person who creates a work”. According to this provision, a person who actually creates a work is the author of that work, and the author fundamentally receives the copyrights of that work. This is called “the principle of authors.

(a) Authorship of a work made in the course of duty (Article 15 of the Japanese Copyright Act) … Revision on authorship

  • This revision provides that, in a case where a work is made by the employee of a corporation etc. in the course of duty, the authorship of that work is given not to the employee but to the corporation etc. under a certain condition. In such a case, the corporation etc. is the author of the work, and the corporation etc. receives all copyrights of that work.

    * Here, authorship should be distinguished from copyright ownership. The author of a work is a person who creates that work (i.e., who holds the authorship of that work), and basically is also the copyright owner of that work. Authorship is never to be transferred once it arises. However, copyright ownership may be transferred to another person. It is therefore possible that the author of a work and the copyright owner of that work are different.

    It is understood that this revision was made to protect rights of employers and third parties.
    Assume that copyrights of a work that is made by the employee of a corporation etc. are individually given to the employee although the work is made in the course of duty at the initiative of the corporation etc., the corporation etc. has to acquire a permission from the employee every time the corporation etc. exploits the work. This is troublesome for the corporation etc. and may cause hindrance in business. If the author of that work is the corporation etc., itself, the corporation etc. can smoothly exploit the work for its business activities.
    In a case where a third party wishes to obtain a license to use a work which a corporation etc. makes public as the work of its own authorship, the third party can easily see who to talk to because the author of that work is the corporation itself. This allows for smooth licensing of works.

(b) Ownership of copyright to cinematographic works (Article 29)…Revision on copyright ownership

  • The copyright of a cinematographic work is received not by the director etc. of the work but by the producer of the work. In this case, the author of the work is different from the copyright owner of the work. However, since the author’s moral right is a personal right, the authorship belongs to the director etc. who actually created the work.
    It is understood that this provision was made for the following reasons:
    (a) That is, in a case where an enormous sum of investment is made to produce a cinematographic work, the producer, who made the investment, has to receive an economical profit appropriate for the investment. Therefore, all copyrights including right of on-screen presentation and right to videoize the work are given to the producer, so that the producer can recover the investment thereof.
    (b) Further, in many cases, various authors such as authors of music, of scenario, and of paintings are involved in production of a single cinematographic work, and the work is a joint work of them. If the authors hold the joint copyright of a single cinematographic work, it becomes impossible to exploit the work without consent of all the co-owners (Article 65(2) of the Japanese Copyright Act). This may prevent smooth exploitation of a cinematographic work. The revision was made to avoid such inconveniences.