On Paper vs. In Reality
Copyright is a bit of a tough area for a lot of people. Understanding the scope of copyright, what it’s for and how it applies to us as business owners is a whole mess of confusion for those who haven’t studied law—and that’s in our own countries! This is Japan!
Sometimes laws are made, but not withheld in the same manner. This is especially prevalent in the case of something less concrete (to many) like a concept such as copyright.
This overview will lay out the terminology and application of copyright here in Japan, based on past cases and how they’ve been ruled. I wrote an article a few months back which gives a general overview of what copyright really means in the creative world of Japan and how it may apply to your projects and your business. Please take a look at that article as a predecessor to this one.
Before starting off, credit must be given to those who deserve it. First, to Japan’s Ministry of Justice for translating the Japanese copyright law into English. Second, to Dennis S. Karjala and Keiji Sugiyama whose 1988 work Fundamental Concepts in Japanese and American Copyright Law provides an astoundingly informative and complete look at how Japanese copyright compares to that of America. Without this book, much of this article’s direction and inspiration wouldn’t have been available to me.
While some of the information for this article comes from that book, it is in no way as precise, detailed, or complete. It is also, in no way, even worth considering a “concise summary” of that content. Reason being, that paper is just too complex and in-depth to sufficiently summarize here. I strongly encourage anyone doing business in Japan to consider reading it.
The Two Levels of Copyright
First and foremost, it’s important to remember two key points about copyright in relation to your work/project.
- Does the work qualify for copyright?
- Can infringement be proven?
Clarifying those points above, you must first be able to prove that your initial work is eligible for copyright in Japan. Once you’re past that barrier, proving that someone actually took your idea (infringement) is a whole different battle to wage.
How does this apply to a real case? Well, it’s important to keep in mind that even if you’ve managed to claim copyright, another work may be deemed independent of yours and thereby fall outside of the protection of your copyrighted work. On the other hand, if your work doesn’t first qualify for copyright at all, your case and concerns of infringement become irrelevant.
Keeping that in mind, let’s get down to what the law actually says:
We introduced this a few months ago in a previous article, but let’s review again here. This time in a bit more detail. In order to qualify for copyright, your project must wholly satisfy the following three requirements:
- It belongs to the literary, scientific, artistic, or musical realm
- It expresses thought or sentiment
- It expresses creativity
literary, scientific, artistic, or musical
From the perspective of graphic design or illustration, it’s generally of no challenge to qualify for this one. The “artistic” realm is generally a broad category and while there is some emphasis placed on “art” in its more traditional sense (think fine art), there have been many instances of graphic or computer-based work breezing through this level of limitation with nigh a hiccup.
An “expression of thought or sentiment”
Here is where things become a bit more challenging in terms of qualifying for the copyright.
Your design must visually and subjectively express a thought or sentiment. This is judged or addressed in “the eyes of a common person.”
A very important point: This does NOT allow you to protect an idea! This stipulation specifically states that the piece must be an “expression” of the thought or sentiment. So, even if you have an incredible idea, you will most likely NOT be able to protect it.
Are you confused? Read on.
The reason this is so difficult is because the language becomes skewed with a word like “idea” which is a more comfortable concept to many people. Unfortunately, the word “idea” is also quite different from a word like “thought” or “sentiment”. Think about those three words’ meanings.
Ideas themselves do not qualify for copyright because they are often too good to keep tucked away and hidden. As we’ll read later, copyright courts will not protect ideas as protecting an idea could severely limit the advancement and growth of a culture, the economy and its people.
Is the previous “expressed creatively”
The final stipulation for copyright qualification requires that the previously mentioned “thought” or “sentiment” be embodied in a way that required creativity of the artist.
In that respect, representing a cloud as a bubbly white shape would not be enough to obtain copyright, after all, clouds are bubbly! That’s the innate, natural image that we have as human beings. By taking a common mental assimilation and expressing it in a design is hardly worthy of “creative” consideration. This clause protects said issues.
Copyright Vs. Infringement
In essence, a copyright lawsuit can fall through at one of two stages: the copyright stage, or infringement stage (as I briefly mentioned above). In Japan, many cases don’t make it past the copyright stage. According to Karjala and Sugiyama’s analysis of the law, Japan seems to be much stricter with granting copyright than a country like America. America tends to be more lenient with distributing copyright though limits infringement a bit more strictly.
The merit for Japanese courts to stop a case at the copyright stage is that it allows others to utilize similar ideas as the piece in question (remember, ideas can’t be copyrighted). Because it doesn’t qualify for protection, its usage is unlimited and culture, the economy, and society can progress freely and fluidly.
On the other hand, if you allow copyright, you’re basically protecting that idea and disallowing anyone from trying their hand at utilizing that idea for their own creative work. If the court isn’t too careful, a limitation like this could severely limit the future of creativity and competition depending on what’s been protected. For this reason, Japanese courts often rely on this as their reasoning for denying copyright.
Not Copyrightable through Practice
Sometimes, court rulings and past cases create a precedent for what’s eligible for copyright and what’s not. The following things are generally not copyrightable as established through past Japanese court decisions:
- Methods or Systems
- Obvious Interpretations of Facts
- Depictions of Historical Situations
There seem to be cases going in both directions in regards to copying.
While some cases have been denied because the original work, itself, did not qualify for copyright. Still other courts have disciplined utterly obvious copiers for the sheer unethical nature of the action, disregarding copyright altogether.
That being said, if your work qualifies for copyright, you could (though it’s not guaranteed) prove infringement just by pointing to the identical content.
In the end, it’s really quite hard to say whether one can claim copyright and infringement upon a piece. Who is to decide what’s “creative” or not? Ultimately, it falls on the courts.
What one may believe to be fully qualified for copyright, could get bashed down because it attempts to protect an idea; or perhaps the art in question is an obvious interpretation or treatment of a concept (like the cloud example above); still further, it may be deemed that protection of the copyright for the artist’s lifetime plus 50 years, may be too long to protect the concept for the sake of the modern world.
Whatever the situation, cover your bases by studying up on the law and asking, as I’ve said before, for documented clarification from your designer.
The above information is not to be deemed as fact or definite. This article is merely meant to be a simple analysis of the history of Japan’s judicial system decisions in lieu of copyrighting design. Ultimately, the law and truth of copyright law in Japan is determined by Japanese courts and by official documentation. Please refer to the below links for more information and contact a lawyer to truly understand how copyright law affects your own projects.