Our society is flooded with numerous numbers of works. For example, articles posted on personal blogs, SNSs such as Facebook, internet forums, etc. are mostly categorized as works copyrights of which belong to respective authors of the articles.
As introduced in “What’s Copyright” page, the Japanese Copyright Act is intended to harmonize protection of creators’ (authors’) works and distribution of useful information to society for cultural development. On this page, we introduce so-called “Restrictive Regulations” stipulated under the Japanese Copyright Act. The Restrictive Regulations can be rephrased as provisions for distributing useful information to society and limiting rights of copyright owners (limiting exercise of copyright owners’ rights) for the purpose of cultural development.
Careless exploitation of works can be infringement of copyrights and authors’ moral rights. On this page, we introduce what type of exploitation is admitted to be lawful under the Japanese Copyright Act.
Quotation defined under Article 32 of the Japanese Copyright Act
1. Exploitation by Lawful Quotation
The Japanese Copyright Act stipulates in Article 32(1) that “It is permissible to quote from and thereby exploit a work that has been made public.” This means that, in a case where a copy etc. of a work is exploited without the consent of the copyright owner but the exploitation falls under quotation, the exploitation is not deemed as copyright infringement. In such a case, exercise of copyright owner’s rights (e.g., right to demand an injunction etc.) is limited.
Further, Article 32(1) of the Japanese Copyright Act continues as follows: “In such a case, the work must be quoted consistent with fair practices and within a scope that is justified by the aim of news report, critique, study, or other place in which the work is quoted.”
The following explains in detail in what case quotation is admitted to be lawful.
*Note : Distinction between “exploitation” and “use”
“Exploitation” and “use” are distinguished under the Japanese Copyright Act. The Japanese Copyright Act defines “exploitation” as actions that a copyright owner can exclusively carry out. “Exploitation” is thus directed to reproduction, transfer, etc. of works. On the other hand, “use” is directed to actions to use works that do not fall under the above actions. “Use” thus represents, for example, actions of listening to music, of reading books, etc.
Please be advised that the following explanation deals with a case of not “use”, but “exploitation”.
(1) Four Requirements
From the descriptions in Article 32(1) of the Japanese Copyright Act, it is possible to find the following four requirements provided against copyright infringement. Exploitation that fulfills these requirements is admitted to be lawful quotation.
- 1. A work to be quoted is being made public.
- 2. Exploitation of interest falls under quotation.
- 3. The quotation is consistent with fair practices.
- 4. The quotation is made within a scope that is justified by the aim of the quotation.
The following further discusses these requirements in detail.
(2) A work to be quoted is being made public.
Article 4 of the Japanese Copyright Act stipulates how works are made public. Whether a work to be quoted is being made public is thus examined based on whether a work to be quoted falls under Article 4 of the Japanese Copyright Act.
For example, Article 4(1) of the Japanese Copyright Act stipulates that a work is admitted to be made public if the copyright owner of the work has presented the work to the public through a stage performance, musical performance, on-screen representation, transmission to the public, recitation, or exhibition.
(3) Exploitation of interest falls under quotation.
The Japanese Copyright Act does not clearly define what type of action quotation is.
According to the judicial precedents etc., forms of exploitation of others’ works are generally judged in terms of two points of (a) “clear delineation factor” and (b) “dominant-and-collateral presence factor”.
(a) Clear delineation factor
A part of a work created by a person who quotes another work has to be clearly delineated from a part in which the another work is quoted.
(b) Dominant-and-collateral presence factor
In view of an entire work, a part created by a person who quotes another work has to be dominant in his/her work while a part in which the another work is quoted has to be collateral in terms of amount and substantiality.
Generally, exploitation that fulfills the above conditions (a) and (b) is deemed to be quotation.
The requirements of fair practices and the justified scope that will be explained below are used to further determine whether the exploitation that has been deemed to be quotation is lawful.
(4) The quotation is consistent with fair practices.
Quotation that is not consistent with fair practices is deemed illegal. It should be noted that not all conventional practices are used as criterions of this determination, but practices that are deemed fair on a legal basis are used as the criterions. Further, as to industries etc. in which practices have not been established, this determination will be made based on practices that are assumed to be fair.
*Clear indication of sources
Article 48(1)(i) of the Japanese Copyright Act stipulates that sources of quotation must be clearly indicated. Some judicial precedents hold that the stipulation of clear indication of sources of quotation is related to determination of whether quotation is consistent with fair practices as necessitated by Article 32 of the Japanese Copyright Act, and examination of legality of the quotation includes checking how clearly sources of quotation is indicated.
As to clear indication of sources, (i) to what degree detailed information needs to be indicated, (ii) in what form such information needs to be indicated, etc. are different depending on what practices are established in each specific case. Therefore, it is important to consider these points by taking into consideration conditions of each case.
(5) The quotation is made within a scope that is justified by the aim of the quotation.
This provision is provided so that a work quoted in another work be exploited only in a justified scope.
Whether quotation is made in the justified scope or not is determined in terms of amount and substantiality. That is, a part quoted from another work cannot be dominant in a subject work. In a case where the quoted part of the subject work is not so many in amount but the quoted part accounts for a main part a value of which is deemed high in the subject work, whether the quoted part is within the justified scope would be strictly determined.
This requirement and the above-described “(3) b. Dominant-collateral factor” are provided in view of a relationship between a work of a person who quotes another work and the another work which is quoted by the person. However, the justified scope is determined by comparing B and C illustrated in the following figure, whereas the dominant-collateral factor is determined by comparing A and C illustrated in the following figure.
3. Lawful exploitation and illegal exploitation
- Case 1: A person who owns a blog made an article on the blog by merely copying posts from an internet forum and pasting the posts on the article without any modification (so-called “content curation”), and stated the URL of the internet forum at the end of the article.
Remarks: If the posts copied from the internet forum are admitted to have copyrightability, copying the posts is deemed as illegal exploitation unless otherwise the action of copying is deemed to be lawful for another reason. This is because such a blog (made by so-called “content curation”) contains substantially no part created by the writer of the blog, and therefore the dominant-collateral factor cannot be admitted to be present between a part in which another work is quoted and a part created by the writer of the blog. Such exploitation cannot be deemed as lawful quotation.
- Case 2: A person who owns a blog etc. took pictures of works (copyrights of which have not expired yet) of, for example, paintings exhibited in a gallery etc., and posted the pictures on his/her blog.
Remarks: In a case where the article of the blog includes, other than the posted pictures, many parts that are created by the writer of the blog (e.g., in a case where the writer of the blog describes in the article historical backgrounds, appreciation methods, etc. of the paintings in detail), such quotation is dealt with as a lawful quotation provided that the sources of the paintings are stated in the article (however, if the sources are not stated, the quotation is not deemed lawful).
In a case where the pictures are merely pasted on the article without additional comments or the like, such quotation is not deemed as lawful quotation even if the sources of the pictures are stated in the article (because the dominant-collateral factor cannot not admitted).
Further, in a case where a painting is partially photographed in a very small size at a corner or the like of the picture, it is not possible to appreciate the painting from the picture (it does not fall under exploitation of works). In such a case, the article is deemed lawful even if the source of the painting is not stated, because it is no longer a matter that falls under quotation.
- Case 3: A person found a good image via internet and posted the image as his/her profile icon on SNSs etc.
Remarks: If he/she has disguised the image as being created by himself/herself, the use is of course illegal. Further, in a case where the source of the image is indicated and the use of the image is not necessary for him/her to create a work (e.g., article of diary etc.) on the SNS, it is not a matter that falls under quotation, and the use is illegal.