Japanese Law and Fair Use: Com’on

Short answer is yes, fair uses exist in Japan’s copyright laws.

Long answer is: No, fair use is not a thing in Japan but–

As a general guideline, US copyright law (I mean the totality: legislation, court rulings, common practices, etc) is a model for many WIPO signatories partly because US is the number one producer and exporter of copyright content, and by far more so once you count the dollars made on top of it. WIPO is the intellectual property organization that make sure laws defining things like copyright is compatible and fair among the countries so we can do commerce. How much they can actually do to enforce stuff is a good question not in the scope of this post. What is, is that Japanese copyright law (and I mean the whole system) is generally modeled after the US one.

Still, Japanese copyright law is different than US copyright law. The key thing is both are WIPO compliant. After signing the WIPO treaty member countries have a duty to make sure their countries’ copyright laws are compatible with WIPO guidelines. This means it generally follows certain guidelines when it comes to defining what is copyrighted, how to obtain copyright protection, and what the protection typically is. The exacts will vary but in general what works for USA will work for Japan in the basic sense, and vice versa. There are too many differences that are beyond the scope of what I want to explain so let’s ignore those for our purposes.

Second thing, we need a basic understanding of what defines “law.” Law comes from a bunch of different sources. In the US, that includes the federal and state constitutions, federal and state legislations, guidelines and rulings from regulatory bodies (like FCC and the SEC and your local state’s DMV for example), and other sources, but utmost important, the rulings from courts. In practice the US Supreme Court is the “highest” rule of the land because they have the power to reinterpret the US Constitution. In more practical terms, the US court system is a common law based one, which means there are a truck load of crap that are law but only defined by the courts. It’s the sign of a modern governance to codify common law into legislation (eg., turn what judge-made laws into actual laws on the books) but that only can go so far.

In our situation with copyright it’s about applying some rule of law and see what is or is not breaking the law. The tools (eg., rules, laws, past legal rulings, etc) available to a court to determine how to apply the rule to whichever situation is often not on the books, because they are just based on prior rulings on similar (but most of the time and ultimately different) fact patterns and non-exact situations.

So, thirdly, let’s define by what we mean when we say “fair use.” This is partly the confusion. There is a specific provision in the US Copyright Act that says as much. However, that (17 US §107) is not the totality of what is now well understood to be the US copyright’s fair use doctrine. The Wikipedia article is more than what you need to know here, but it’s important to realize we are talking about a legal concept rather than codified do’s and don’ts. It’s not just how it’s now codified but rather what has the courts been interpreting this common law concept and applying it. In the USA, fair use is just an affirmative defense against copyright infringement. It means you say “this is fair use” only when someone sues you. Just because you think something is fair use doesn’t prevent people from suing you, although if you get a judge to agree it might help you win the case. This means things like the average ero doujinshi is still copyright infringing works, and it’s up to a court to say that they aren’t before they truly aren’t. This much is true in both US and Japan.

In actual practice, fair use means we can do certain copyright-infringing things and it’s not an infringements. A good example of this is like making and selling those cheesy J-List t-shirts that are categorically ruled as parody, without paying any royalties to the copyright owners. (There’s also a trademark situation here but that is beyond the scope of this post.) Probably an even better one is making cosplay outfits.

The question is then, does Japan’s copyright laws allow these kind of behaviors? Kind of yes, kind of no. To rephrase what I said in other ways, Japan’s copyright law already baked some of these fair-use-y things into the legislation. The most relevant provision in the Japanese Copyright Act is the private use exception. Japan’s copyright act also codified some stuff not in the US one, such as the non-commercial exception or the press exception, but it would only make sense to include them as exceptions because of fair use reasons. So if the copyright act is going to allow specific exceptions that posits the same practical outcome, does “fair use” exist? As a legal concept, probably not. But as a general/practical concept, yes.

Here’s the difference. Fair use as a legal doctrine is not applicable in Japanese law (although it’s not far fetched to see a JP court or a particularly aggressive administration trying to push it. Sup. Mr. Aso?), and with that, they remove a huge ambigious aspect of US Copyright law that many countries also avoid–US is THE fair use state. It just means many of the well-established fair uses are codified in those countries with better legislatures (w) and it gives less power to the courts to rub one out to whichever way the wind blows at the time. The realistic view is that fair use as a matter of commercial predicator is shit. And I do not use this curse word lightly. The problem is until a court says it’s a fair use, and court rules usually on specific facts, how do you know if your use is close enough to the use presented in that court case? It’s such a major pain in the butt that it renders it largely moot for anyone who is actually trying to do something interesting.

So I guess there isn’t fair use as we American lawyers know it, but there are uses that are fair, based on the same reasons why it would be allowed in the US. In practice, yeah you can still do your parody or whatever with almost just as much legal protection in Japan as it you do in America. (Is parody legal in the USA? Yes and no, that’s several books of legal discussion in of itself. It’s certainly not codified. For those who think parody is legal, just go check out Penny Arcade’s “Strawberry Shortcake” situation for a practical example why it’s a lot more difficult to make money doing parodies than you think.) There are reasons why media companies employ huge teams of in-house lawyers on top of firms to do their heavy lifting.

And since I spilled my TL;DR let me go the next step and just say this is how I feel about “artist alley merch” that are basically a shade of grey from shameless copyright infringement. It’s one thing to do a limited print run, it’s another to make a living off it.  The whole “snarky t-shirt” industry can go die in a fire and I would not miss it… I mean, think about it, some poor kid goes to a con and buys some snarky shirts. S/he can spend a fair amount of money and none of it makes it back to Japan. What s/he ends up buying are visual signifier built on the IP, not because s/he wants to stick it to the Man, when s/he buys a shirt with a parody Che-face on it. Yaranaika?

In other words, just because the fair use factors are not codified, doesn’t mean they aren’t still at the heart of the determination of what is allowable, non-copyrightable use. And shouldn’t most what laypeople consider fair uses be non-copyrightable use in this day and age? It really shouldn’t be a defense against copyright infringement. It shouldn’t be copyright infringement to begin with.

Further reading:

• Japanese government’s unofficial translation of Japan’s Copyright Act: 著作権法
• Just googled up some paper pointing out how fair use rights vary between US, CAN, and JP in parody.
• All those wikipedia links I put up there but mainly: US Fair Use, Japan Fair Use.

PS. All due respect to their quality work, ANN should get a lawyer on staff so they can cite an actual legal professional rather than just sounding like there’s some authority from someone who knows the law. That’s bush league and can even get you into legal trouble. It can’t be that hard to find a contractor this day and age, right?

PPS. This post has some inaccuracies. I tried to stay clear the details, because to get those right I need to do research and I just don’t have the time.

PPPS. It’s really about this and that. The one thing I omitted is how in Japan this is now criminal. Which in my opinion is serious bull-caca. At any rate, don’t say “there is no fair use in Japan” and then go talk parodies, because parodies are not even entirely legal under a fair use regime. Then again, don’t even say racist stuff?