Employee Creations: Does "Work Made for Hire" Exist in Japan? Understanding 'Shokumu Chosaku'

For businesses, particularly those with creative outputs, determining the authorship and ownership of copyrighted works created by employees is a critical legal and operational concern. In the United States, the "Work Made for Hire" (WMFH) doctrine provides a relatively clear framework where, under certain conditions, the employer is considered the author and initial copyright owner. Japan, however, approaches this issue through a distinct system known as "Shokumu Chosaku" (職務著作), or "work made in the course of duties," outlined in Article 15 of the Japanese Copyright Act (著作権法 - Chosakuken-hō). While there are parallels, the conditions, consequences, and underlying presumptions differ significantly from the U.S. model, especially concerning initial authorship and moral rights.

The General Principle in Japan: Employee as Author

Unlike the U.S. WMFH doctrine where the employer can be deemed the author from the outset for certain types of works, the default principle under Japanese copyright law is that the individual who actually creates the work is its author and, therefore, the initial copyright owner (Article 17(1)). This holds true even in an employment context.

However, Article 15 provides a significant exception to this rule, allowing the employer (typically a juridical person or other employer) to be treated as the author if specific cumulative conditions are met. It's crucial to understand that employer authorship under Shokumu Chosaku is the exception, not the default rule.

Conditions for Employer Authorship under Article 15(1)

For an employer to be deemed the author of a work (excluding computer programs, which have a special provision), Article 15, Paragraph 1 sets forth four cumulative conditions:

1. The work must be created based on the initiative of the juridical person or other employer (その法人等が自己の著作の名義の下に公表するものを除く。以下この条において「法人等」という。) の発意に基づき - sono hōjin tō ga jiko no chosaku no meigi no shita ni kōhyō suru mono o nozoku. Ika kono jō ni oite 'hōjin tō' to iu.) no hotsui ni motozuki).
   • "Initiative" here does not necessarily require a specific, direct order from the employer for each work. It is generally interpreted to mean that the creation of the work falls within the scope of the employer's business plan or that such creation is expected or anticipated in the course of the employer's operations. If an employee creates something wholly unrelated to the employer's business or objectives, even during work hours, it may not satisfy this condition. The IP High Court decision in the Space Development Agency Program case (December 26, 2006) affirmed that a work created in line with an employer's business plan, even without a specific order, could meet the "initiative" requirement.
2. The work must be created by a person engaged in the business of the juridical person, etc., in the course of their duties (その法人等の業務に従事する者が職務上作成するものであること - sono hōjin tō no gyōmu ni jūji suru mono ga shokumu-jō sakusei suru mono de aru koto).
   • "Person engaged in the business": This primarily refers to individuals in a direct employment relationship (employees). However, its scope can be broader. The Supreme Court decision in the RGB Adventure case (April 11, 2003) established a substance-over-form approach. It held that even if a formal employment contract is absent, an individual could be considered "engaged in the business" if, based on a comprehensive consideration of factors like work style, degree of employer supervision, and the nature of remuneration, the relationship substantially resembles that of an employee providing labor under the employer's direction, and the payment is considered compensation for that labor. This could potentially include dispatched workers (haken rōdōsha), or even certain contractors if they are deeply integrated into the employer's operations and under its significant control, effectively working like employees. The Green Green case (Tokyo High Court, July 10, 2003), in an obiter dictum, suggested a freelance scenario writer could fall under this if working jointly with and under the direction of the employer's staff.
   • "In the course of their duties": The creation must be directly related to the individual's job responsibilities and tasks assigned or reasonably expected by the employer. Works created outside of working hours, using personal resources, and for personal pursuits generally fall outside this scope, unless there's a clear link to their duties or significant employer support aimed at the creation for the employer's benefit. For example, a university professor's scholarly articles might be considered personal works, but an admissions brochure or internal regulations drafted by the same professor would likely be Shokumu Chosaku. The Soei Intellectual Property Rights Introduction case (Tokyo District Court, November 12, 2004) found that a book written by patent attorneys outside working hours, with voluntary participation, did not meet this requirement.
3. The work must be made public by the juridical person, etc., under its own name as author (その法人等が自己の著作の名義の下に公表するものであること - sono hōjin tō ga jiko no chosaku no meigi no shita ni kōhyō suru mono de aru koto) (This condition does not apply to computer programs – see below).
   • "Made public...under its own name as author": This condition is crucial. The employer must publish the work, or intend to publish it if it were to be made public, under its own name (or a recognized corporate pseudonym) as the author, not the individual creator's name.
   • Unpublished Works: For works that remain internal or are not made public (e.g., internal reports, in-house software tools before Article 15(2) was specified for programs), Japanese courts have generally interpreted this to mean that if the work were to be published, it would be under the employer's name. This "hypothetical publication" rule prevents the actual creator from claiming authorship simply because the work remained unpublished. The Niigata Tekko case (Tokyo High Court, December 4, 1985), involving internal design documents, is a leading example of this interpretation.
   • Ambiguous Attribution: Complications can arise if both the employer's and the employee's names appear, or if the employee's name appears with an affiliation to the employer. If the employee is identified in a way that suggests they are the author, even with an affiliation, it may negate this condition. For example, the Instrumentation Industry Association Lecture Material case (IP High Court, October 19, 2006) found that an individual named with their corporate title (e.g., "X, Manager, Y Company") was an indication of individual authorship, not corporate authorship. However, if individual names are listed merely as contributors or team members under an overarching corporate author attribution, Article 15(1) might still apply. The Hokkai Gakuen University case (IP High Court, August 4, 2010) concerning a university research report with multiple named researchers but published under the university's auspices, found it to be a corporate work.
4. There must be no stipulation to the contrary in any contract, work rules, or other instrument at the time of creation (その作成の時における契約、勤務規則その他に別段の定めがないこと - sono sakusei no toki ni okeru keiyaku, kinmu kisoku sonota ni betsudan no sadame ga nai koto).
   • This signifies that Article 15(1) provides a default rule. Employers and employees are free to agree contractually (e.g., in an employment agreement or through established work rules) that the individual creator will be the author and retain copyright, even if all other conditions for employer authorship are met. If such a "contrary stipulation" (betsudan no sadame) exists, the employee remains the author.

If all four of these conditions are satisfied, the juridical person or other employer is deemed the author of the work.

Special Rule for Computer Programs (Article 15(2))

Recognizing the unique nature of software development, its often collaborative and functional characteristics, and the strong business need for employers to have clear and unified rights, Article 15, Paragraph 2 provides a significant modification for computer programs:

"The authorship of a computer program work created by a person engaged in the business of a juridical person, etc., on the initiative of that juridical person, etc., in the course of his duties shall be attributed to that juridical person, etc., as author, unless otherwise stipulated in a contract, work rules or any other instrument in force at the time of its creation."

Crucially, Article 15(2) omits the third condition of Article 15(1) – the requirement that the work be published under the employer's name. This means that for computer programs, if the employer takes the initiative, the employee creates it in the course of their duties, and there's no contrary agreement, the employer becomes the author regardless of whose name the program is published under, or even if it is not published at all.

The rationale for this special treatment includes the often less personal or artistic nature of code compared to other creative works, the high degree of investment by employers in software development, and the practical necessity for employers to freely modify, update, and distribute software without needing to navigate individual employee moral rights for every change.

Consequences of Employer Authorship under Shokumu Chosaku

When the conditions of Article 15 are met and the employer is deemed the author:

1. Initial Authorship and Copyright Ownership: The employer is considered the author from the moment of creation. Consequently, the employer is the initial owner of all economic rights (copyright) in the work.
2. Moral Rights: As the author, the juridical person or other employer also holds and can exercise the author's moral rights (right of disclosure, right of attribution, right of integrity). This is a key difference from situations where an employee-author assigns copyright to the employer but retains their inalienable moral rights. When a corporation is the author, it exercises these rights as a legal entity.
3. Employee's Status: The individual employee who physically created the work is not considered the author under copyright law. They do not hold copyright or moral rights in the Shokumu Chosaku work. Their contribution is recognized through their salary and other employment benefits.

Comparing Shokumu Chosaku with the U.S. Work Made for Hire Doctrine

While both systems address works created in an employment context, there are fundamental differences:

• Default Rule and Initial Authorship:
  • U.S. WMFH: If a work qualifies as WMFH (either as a work prepared by an employee within the scope of employment, or as a specially ordered/commissioned work under specific categories with a written agreement), the employer or commissioning party is considered the author from inception and the copyright owner.
  • Japan (Shokumu Chosaku): The default is that the employee-creator is the author. The employer becomes the author only if the stringent conditions of Article 15 are met. If not, the employee remains the author, and the employer would typically need an assignment of copyright (though moral rights would remain with the employee).
• Moral Rights:
  • U.S. WMFH: For works deemed WMFH, the individual creator generally has no moral rights under federal copyright law (VARA, which grants limited moral rights, explicitly excludes WMFH).
  • Japan (Shokumu Chosaku): If the employer is deemed the author under Article 15, the employer (as a juridical person) holds and exercises the moral rights. This is distinct from the U.S. scenario where the creator simply doesn't have them. If Article 15 conditions are not met and the employee is the author, the employee retains their full, inalienable moral rights even if they assign the economic rights to the employer.
• Scope of "Employee" and "Course of Duties":
  • The U.S. applies common law agency principles to determine "employee" status for WMFH.
  • Japan's "person engaged in the business...in the course of their duties" can be interpreted based on the substance of the relationship, potentially covering some non-traditional employment scenarios if sufficient employer control and direction are present, as seen in the RGB Adventure case.
• Role of Contracts:
  • U.S. WMFH: For commissioned works to be WMFH, a written agreement designating them as such is required (for specific categories of works). For employee-created works, the employment relationship itself is key.
  • Japan (Shokumu Chosaku): Article 15 acts as a default that can be overridden by a contract, work rules, or other agreement explicitly stating that the employee will be the author. Conversely, if the conditions of Article 15 are not met (e.g., it's not an employee, or it's published under the employee's name), the parties cannot simply contract to make the employer the author in the Article 15 sense (though copyright assignment is possible).

Practical Implications for Businesses

Understanding Shokumu Chosaku is crucial for businesses, especially multinational companies with operations or employees in Japan, or those commissioning creative work from Japanese individuals or entities.

• Employment Agreements and Work Rules: These are vital. To ensure the company becomes the author of employee-created works (where intended), agreements should be drafted to align with Article 15 conditions or, at a minimum, secure an assignment of economic rights if employee authorship is maintained. The "contrary stipulation" clause means that if businesses want the employee to be the author, this must be clearly stated.
• Clarity on "Initiative" and "Course of Duties": Define job responsibilities clearly to delineate what falls under "course of duties." For works created spontaneously by employees but beneficial to the company, assess if they fall under the company's "initiative."
• Attribution Practices: For works other than computer programs, the intended name of publication is a key factor. Internal policies should align with the desired outcome under Article 15(1)(iii).
• Contractors and Dispatched Workers: The RGB Adventure principle requires a careful, substantive analysis of the working relationship. Relying solely on the label "contractor" may not be sufficient if the reality is one of de facto employment-like control for the purpose of Shokumu Chosaku. Clear contractual terms regarding IP ownership and authorship are essential in these relationships.
• Computer Programs: Remember the special rule under Article 15(2) where publication name is not a condition for employer authorship. This generally simplifies rights management for software developed in-house.
• Moral Rights Considerations: Even if the company becomes the author under Article 15, it will hold the moral rights as a juridical entity. Understanding how these rights (e.g., right of integrity) are exercised by a corporation is important. If an employee remains the author, their moral rights persist even if economic rights are assigned, necessitating agreements on the non-exercise of moral rights for reasonable business uses.

Conclusion

Japan's Shokumu Chosaku system provides a specific legal pathway for employers to be recognized as authors of works created by individuals engaged in their business. However, it operates on a default of employee authorship and requires strict adherence to its cumulative conditions. It is not a direct equivalent of the U.S. Work Made for Hire doctrine, particularly in its treatment of initial authorship and the allocation of moral rights. Businesses must navigate these provisions with care, ensuring their employment contracts, work rules, and practices for handling intellectual property are well-aligned with the nuances of Japanese copyright law to secure the intended authorship and ownership of valuable creative assets.