Beyond Direct Infringement: What Acts are "Deemed" Copyright Infringement Under Japanese Law?

Japanese copyright law provides a robust framework for protecting the rights of creators. While direct infringement of exclusive rights—such as unauthorized reproduction, public transmission, or adaptation—forms the core of this protection, the law also recognizes that certain ancillary or preparatory acts can be equally damaging. Article 113 of the Japanese Copyright Act (著作権法 - Chosakukenhō) addresses this by stipulating specific actions that are "deemed" to constitute an infringement (みなし侵害 - minashi shingai) of copyright, author's moral rights, or neighboring rights. These provisions significantly broaden the scope of actionable conduct.

Understanding "Deemed Infringement"

"Deemed infringement" provisions target activities that, while perhaps not fitting neatly into the definitions of direct infringement of an exclusive economic or moral right, are considered sufficiently harmful or closely linked to direct infringement to warrant legal remedies. These acts often involve dealing with infringing articles, misusing technology, or undermining rights management systems. Such provisions apply not only to copyright (economic rights) but can also extend to author's moral rights and neighboring rights (rights of performers, record producers, broadcasters, etc.).

Let's explore the key categories of acts deemed to be infringements under Article 113:

1. Importation of Infringing Articles for Distribution (Article 113(1)(i))

This provision targets the importation of articles into Japan for the purpose of distribution, where those articles, if they had been made in Japan at the time of their importation, would have constituted an infringement of copyright, author's moral rights, or neighboring rights.

• "If made in Japan" Standard: A crucial aspect is that the hypothetical assessment of infringement is based on Japanese copyright law standards. This means that even if an article was lawfully created in its country of origin (e.g., under a local copyright exception), its importation into Japan can still be a deemed infringement if its creation within Japan under Japanese law would have been infringing. The Tokyo District Court's provisional disposition in the Leonard Tsuguharu Foujita case (November 27, 1987) illustrated this principle: works made under a foreign copyright limitation might still be deemed infringing upon import if Japanese law wouldn't permit such creation.
• Interaction with Exhaustion Doctrine: This provision primarily aims at "pirate editions" or unauthorized foreign-made copies. It must be read in light of Japan's rules on the exhaustion of rights. For example, for non-cinematographic works, the right to control the transfer of ownership (譲渡権 - jōtoken) can be exhausted internationally under specific conditions (Article 26-2(2)(v)). If rights regarding specific lawfully made and circulated copies are exhausted, their importation for distribution might not be deemed an infringement under this clause.
• Purpose of Distribution: The act of importation must be for the purpose of distribution within Japan. Importing a single infringing copy for purely personal, private use would generally not fall under this specific deemed infringement.

2. Distribution or Possession for Distribution of Infringing Articles (Article 113(1)(ii))

This provision addresses the circulation of infringing items within Japan. It deems the following acts as infringements: distributing, or possessing for the purpose of distribution, articles that were made by an act infringing copyright, author's moral rights, or neighboring rights (including articles imported under Article 113(1)(i)), provided the person doing so has knowledge of the infringement.

• Knowledge Requirement: The "knowledge" (jō o shitte 情を知って) that the articles are infringing is a key element for this deemed infringement to apply.
• Scope of Application: Historically, before the formal introduction of a comprehensive "right of transfer of ownership" in 1999, this was a primary tool for combating the sale of pirate editions. Even with the current transfer right, this provision remains vital. It can apply, for instance, where someone initially acquires infringing copies without knowledge (and might be protected from direct transfer right infringement by provisions like Article 113-2 concerning bona fide acquisition), but later gains knowledge and then proceeds to distribute them. It also clearly covers the distribution of items that infringe an author's moral rights, as moral rights are distinct from the economic transfer right.
• Preparatory Acts: The inclusion of "possessing for the purpose of distribution" and, in some contexts, "possessing for the purpose of export in the course of trade" allows for intervention before actual distribution occurs, which is particularly relevant for customs enforcement and preventing the dissemination of infringing goods.

3. Business Use of Illegally Made Computer Program Reproductions (Article 113(2))

This provision specifically targets the end-use of infringing software in a business context. It deems it an infringement to use a reproduction of a computer program work on a computer in the course of business, if that reproduction was made by an act that infringed the copyright in the program, and the user was aware of such infringement at the time they acquired the authority to use that reproduction.

• "In the course of business" (gyōmu-jō 業務上): Purely personal, non-business use is excluded.
• "Awareness at the time of acquiring authority to use": This timing is critical. If a business acquires an infringing software copy unknowingly, or only becomes aware of its infringing nature after lawful acquisition, the subsequent business use itself is not deemed an infringement under this particular paragraph (though the initial act of unauthorized reproduction by the supplier would still be an infringement).
• Rationale: Merely using a program (i.e., running it) is not an act explicitly covered by the standard exclusive rights like reproduction or public transmission. This provision closes that potential loophole for knowingly acquired infringing software used in a business setting.

4. Circumvention of Technical Exploitation Restriction Measures (Access Controls) (Article 113(3))

This provision, which has seen amendments reflecting international obligations such as those under the Trans-Pacific Partnership (TPP) agreement, addresses the circumvention of technological measures designed to control access to copyrighted works.

The act of circumventing "technical exploitation restriction measures" (技術的利用制限手段 - gijutsuteki riyō seigen shudan), commonly known as access controls, is deemed an infringement of copyright, publishing right, or neighboring rights. This is distinct from circumventing "technical protection measures" (技術的保護手段 - gijutsuteki hogo shudan), which are copy controls. Reproducing a work after bypassing copy controls would be a direct infringement of the reproduction right. Article 113(3), however, targets the act of defeating the access controls themselves, regardless of subsequent reproduction.

Exceptions exist, such as circumvention for legitimate purposes like research or technological development, provided it's within a justifiable scope.

5. Alteration, Removal, or Addition of False Rights Management Information (RMI) (Article 113(4) and (5))

These paragraphs concern the integrity of Rights Management Information (RMI) (権利管理情報 - kenri kanri jōhō), which is electronically embedded or associated information about the work, its author, or the terms and conditions of its use (defined in Article 2(1)(xxii)).

Article 113(4) deems the following acts as infringements:

• Intentionally adding false RMI to a work.
• Intentionally removing or altering genuine RMI without legitimate cause (e.g., unavoidable technical necessities during a lawful conversion).
• Distributing, possessing for distribution, importing for distribution, or publicly transmitting/making transmittable works or their copies, with knowledge that RMI has been falsely added or wrongfully removed/altered.

Article 113(5) clarifies that for the purposes of this section, "neighboring rights" also encompass rights to remuneration and secondary use fees for performers and record producers.

6. Acts Concerning Commercial Sound Recordings Intended for Overseas Distribution (Anti-Reimportation Measures) (Article 113(6) - as per current numbering, formerly Article 113(5) in some older references)

This provision, often referred to as an "anti-reimportation" or "anti-circumvention of territoriality" measure for music, specifically addresses certain commercial sound recordings. It deems the following acts as infringements of copyright or neighboring rights:

• Knowingly importing for distribution in Japan commercial sound recordings that were lawfully made in Japan but intended exclusively for distribution outside Japan.
• Knowingly distributing such imported recordings in Japan or possessing them for such distribution.

This applies only if such re-importation and domestic distribution would "unreasonably prejudice the economic interests" of the relevant copyright or neighboring rights holder in Japan. Furthermore, this deemed infringement is subject to strict conditions:

• It applies only to recordings where the original master was first fixed in Japan, or the producer is a Japanese national/corporation.
• The recordings must be clearly marked as intended for exclusive distribution outside Japan.
• The protection is time-limited (currently up to 7 years from the first lawful sale outside Japan, but not exceeding the term of protection for the recording in Japan).

This measure was introduced to address the economic impact of lower-priced "parallel imports" of Japanese music releases from other countries back into the Japanese market, arising from international price differentials. It was enacted after significant debate, balancing industry protection with principles of free trade.

7. Use of a Work in a Manner Prejudicial to the Author's Honor or Reputation (Article 113(7) - as per current numbering, formerly Article 113(6))

Using a work in a way that harms the honor or reputation of its author is deemed an infringement of the author's moral rights. This specific moral rights protection will be explored in greater detail in a dedicated discussion on author's moral rights.

Implications of Deemed Infringement

Acts deemed infringements under Article 113 are generally subject to the same civil remedies as direct infringements of copyright. This includes the possibility of seeking injunctions to stop or prevent the act (Article 112) and claims for monetary damages (under Civil Code Article 709, supplemented by special provisions for calculating damages in Copyright Act Article 114). Criminal penalties may also apply to certain deemed infringement activities.

These provisions significantly extend the protective reach of copyright law beyond direct copying or unauthorized transmission, addressing a range of conduct that can undermine the value of copyrighted works and the effectiveness of rights management.

Conclusion

Article 113 of the Japanese Copyright Act plays a crucial role in providing comprehensive protection for copyright holders, authors, and neighboring rights holders. By "deeming" certain activities as infringements—from importing pirate goods and knowingly distributing them, to misusing technology to bypass access controls or tamper with rights information—the law addresses multifaceted threats in both the physical and digital realms. A thorough understanding of these deemed infringement provisions is therefore indispensable for anyone involved in the creation, distribution, or commercial use of copyrighted materials in or related to Japan.