Employee vs. Employer: Who Owns Copyright for Works Created on the Job in Japan?

In the realm of intellectual property, determining who owns the copyright to a work created within a business context is a critical issue with significant financial and operational implications. While the default principle in many copyright systems is that the individual creator is the first owner of copyright, most jurisdictions also have provisions for works created by employees. Japan is no exception, with its Copyright Act (著作権法 - Chosakken-hō) establishing a doctrine known as shokumu chosaku (職務著作), or "work made in the course of duties." This doctrine, an exception to the fundamental principle of "creator-as-author" (sōsakusha shugi), dictates when an employer, rather than the individual employee, is deemed the author and initial copyright owner.

The Shokumu Chosaku Doctrine: Article 15 of the Japanese Copyright Act

Article 15, Paragraph 1 of the Japanese Copyright Act sets out the conditions under which a juridical person or other employer (法人等 - hōjin tō) becomes the author of a work created by an individual engaged in its business. The underlying rationale for this doctrine is twofold: first, to enable employers who have invested capital and resources into the creation of works to recoup their investment and manage the resulting intellectual property effectively; and second, to align copyright ownership with the entity that typically bears social responsibility and garners public trust for works published or utilized under its name.

For an employer to be recognized as the author under Article 15(1), five specific statutory requirements must be met, unless the work is a computer program (which has a slightly modified rule).

1. Initiative of the Juridical Person or Other Employer (法人等の発意 - hōjin tō no hatsui)

The creation of the work must be based on the "initiative" of the employer. This term is interpreted quite broadly by Japanese courts. It naturally includes situations where the employer directly plans the creation of a work and specifically instructs an employee to produce it. However, it also extends to scenarios where an employee conceives of and proposes a work, and a superior within the organization subsequently approves its creation.

Case law has further broadened this interpretation. For instance, the Intellectual Property High Court, in a judgment dated December 26, 2006 (concerning works created at a space development agency - Uchū Kaihatsu Jigyōdan case), and again in a judgment on August 4, 2010 (regarding creations at an institute of technology - Kitami Kōdai case), suggested that "employer's initiative" can be found even without explicit approval or a direct order, as long as the creation of the work aligns with the employer's operational plans and the work itself was something anticipated or reasonably expected to arise from the employee's duties. This has led some commentators to suggest that the "initiative" requirement often merges with, or is largely absorbed by, the "in the course of duties" requirement discussed below. The threshold for "initiative" appears to be quite low, focusing more on whether the work's creation falls within the general scope and direction of the employer's enterprise.

2. By a Person Engaged in the Business of the Juridical Person, etc. (法人等の業務に従事する者 - hōjin tō no gyōmu ni jūji suru mono)

The work must be created by an individual "engaged in the business" of the employer. This clearly encompasses individuals who are formally employed under a contract of employment. However, Japanese law, much like U.S. law following Community for Creative Non-Violence v. Reid, 490 U.S. 730 (1989), looks beyond mere formalities. The Supreme Court of Japan, in a judgment on April 11, 2003 (the RGB Adventure case), emphasized that the existence of an employment relationship is determined substantively. The court will consider factors such as whether the individual provides labor under the employer's direction and supervision, and whether payments made by the employer can be characterized as remuneration for such labor, taking into account the actual working conditions, the degree of supervision, the amount and method of payment, and other relevant circumstances. The absence of a formal written employment contract or the non-deduction of employment insurance premiums from salary does not, in itself, negate an employment relationship.

A more complex issue is whether this category includes individuals who are not direct employees, such as independent contractors, freelancers, or dispatched workers (haken rōdōsha)—workers employed by a staffing agency but working at and directed by a client company. Generally, Article 15 is understood to primarily target traditional employer-employee relationships. If, for example, Company A commissions an external firm, Company B, to create a brochure, and an employee of Company B, named 'b', actually creates the brochure which is then published under Company A's name, Article 15(1) would likely not make Company A the author. This is because 'b' is not directly engaged in Company A's business in the capacity of an employee of Company A. The authorship would then typically vest in 'b' or, potentially, in Company B if Company B internally satisfies the shokumu chosaku requirements (though publication under Company A's name would complicate Company B's claim to authorship under the fourth requirement). The status of dispatched workers is particularly nuanced; while they work under the client company's direction, their formal employer is the staffing agency. Case law continues to develop in this area, often requiring a detailed factual analysis of the control and integration of the worker into the client's business.

3. Created in the Course of Duties (職務上作成する - shokumu jō sakusei suru)

The work must be created "in the course of the employee's duties". This means the creation must be part of the work assigned to the employee or fall within the scope of their job responsibilities. Classic examples include a journalist employed by a newspaper writing an article, or an employee in an advertising department creating a promotional poster for the company's products.

As with the "initiative" requirement, this condition can be met even without a specific, direct instruction from the employer, provided that the creation of such a work is reasonably anticipated or expected as part of the employee's role and responsibilities within the organization. This was affirmed in the Uchū Kaihatsu Jigyōdan and Kitami Kōdai cases mentioned earlier. The central question is whether the work's creation is linked to the employee's professional obligations to the employer. For roles that inherently involve creativity, such as designers, researchers, or software developers, a broader range of creations might be considered within the course of duties. The treatment of academic research by university professors, for instance, can be complex and may depend on university regulations and specific employment terms.

4. Published under the Name of the Juridical Person, etc. as Author (法人等が自己の著作の名義の下に公表する - hōjin tō ga jiko no chosaku no meigi no shita ni kōhyō suru)

Generally, for the employer to be deemed the author, the work must be "made public under the name of the juridical person, etc. as author". This requirement aligns with one of the rationales of the doctrine: that the entity publicly taking responsibility for the work should also hold the authorship. The term "author's name" (chosaku no meigi) is crucial here. It is not sufficient for the employer's name to merely appear as an affiliation or in a general capacity. The name must be presented in a way that indicates the employer as the author of the work. For example, the Tokyo District Court, in a judgment dated February 27, 2006 (the Keisō Kōgyōkai case), held that a company's name appearing alongside a lecturer's name on training materials was merely an indication of the lecturer's affiliation and position, not an assertion of the company's authorship of the materials themselves. Similarly, a newspaper article featuring a byline like "Washington, by correspondent XX" is typically viewed as an internal attribution of responsibility or to indicate credibility, with the newspaper publisher itself remaining the author under Article 15, rather than the individual correspondent for that specific piece, unless other factors suggest otherwise.

The phrase "made public" (kōhyō suru) is interpreted to cover works that are intended to be made public under the employer's name at the time of their creation, even if they have not yet been actually disseminated. This is a practical interpretation; otherwise, the employee would be the author of all unpublished works, potentially complicating the employer's ability to subsequently publish them. Furthermore, this requirement has been held to apply even to works that are not intended for any external publication at all (e.g., internal reports), if it can be established that if such a work were to be made public, it would naturally be under the employer's name as author (Tokyo High Court, December 4, 1985 - Niigata Tekkō case).

Crucial Exception for Computer Programs: This requirement of publication under the employer's name as author is waived for computer programs (Article 15, Paragraph 2). This significant exception recognizes that computer programs are often embedded within products, distributed without explicit authorship attribution, or used internally, making the "publication under employer's name" criterion impractical or irrelevant for this category of work. For programs, if the other four conditions are met, the employer will be deemed the author.

5. Absence of a Contrary Stipulation (別段の定めがない限り - betsudan no sadame ga nai kagiri)

The final condition for employer authorship under Article 15(1) is the absence of any "contrary stipulation" at the time of the work's creation. This means that if there is an employment contract, work rule, or any other agreement between the employer and the employee that explicitly states that the employee (the actual creator) shall be the author, then Article 15(1) will not apply, and authorship will vest in the individual employee. This provision allows for flexibility and enables parties to contract around the default statutory rule, which can be important depending on industry customs, the nature of the creative work, the employee's position, or specific negotiations.

It is important that such a contrary stipulation be in place at the time of creation. An agreement made after the work's creation to designate the employee as the author will not retroactively prevent Article 15(1) from having taken effect if all other conditions were met at the creation time (thus initially vesting authorship in the employer). In such a scenario, the post-creation agreement might be interpreted as a contractual assignment of the copyright (economic rights) from the employer-author to the employee. However, the moral rights, which are inalienable in Japan, would have originally vested in the employer-author and would typically remain with the employer unless a very specific waiver or agreement regarding their non-exercise is also in place.

Effect of Meeting All Requirements: Employer as Author

If all five conditions (or four, in the case of computer programs) under Article 15 are satisfied, the juridical person or other employer is deemed to be the "author" (chosakusha) of the work. This has a profound consequence: both the economic rights (the bundle of rights typically referred to as copyright) and the moral rights (chosakusha jinkakuken – which include the right to make the work public, the right of attribution, and the right to integrity) originally vest in the employer as the author. This is a key distinction from the U.S. work-made-for-hire system, where the employer is considered the author for copyright ownership purposes, but federal moral rights (to the limited extent they exist under VARA for visual arts) are typically associated with the individual human creator and are not automatically transferred to or vested in the employer-author, nor does a corporate author possess moral rights in the U.S. sense.

Comparing Japanese Shokumu Chosaku with U.S. Work-Made-For-Hire

While both Japan's shokumu chosaku and the U.S. work-made-for-hire doctrines aim to allocate rights for works created in an employment context, there are notable differences:

• Scope of "Employee": The U.S. definition of an "employee" for work-made-for-hire purposes relies on common law agency principles, as clarified in CCNV v. Reid. Japan also employs a substantive assessment of the employment relationship, but its interpretation is rooted in its own labor law and contractual customs.
• Commissioned Works: U.S. copyright law has nine specific categories of specially ordered or commissioned works that can be considered works made for hire if the parties expressly agree so in a written instrument. Japan's Article 15 primarily addresses the employer-employee relationship. For works commissioned from independent contractors or external firms in Japan, the default rule is that the contractor (the actual creator or their employer if Article 15 applies internally to them) is the author. The commissioning party must then secure rights through a contractual assignment. The PDF's example involving Company A commissioning Company B, where Company B's employee 'b' creates the work, illustrates that Company A (the commissioner) would not automatically become the author under Article 15 unless 'b' could somehow be construed as Company A's de facto employee for that purpose, which is unlikely.
• Moral Rights: This is a significant point of divergence. In the U.S., if a work is "made for hire," the employer is considered the author and generally holds all rights. Individual employees typically do not retain federal moral rights in such works (VARA being a narrow exception for certain works of visual art). In Japan, if the employer qualifies as the author under Article 15, it acquires not only the economic copyright but also the powerful and inalienable moral rights. This means the employer, as author, has the right to decide on publication, attribution, and the integrity of the work.
• Statutory Default and Contractual Override: Both systems allow for contractual agreements to alter the default ownership rules. However, the default positions differ. Article 15 establishes a strong statutory presumption of employer authorship in Japan if its conditions are met, which can only be displaced by a "contrary stipulation" designating the employee as the author.

Practical Implications and Contractual Considerations

For businesses, particularly those operating internationally or engaging with Japanese creators or companies, understanding Article 15 is crucial:

• Clarity in Employment Agreements and Work Rules: To avoid ambiguity, employment contracts and internal company regulations in Japan should clearly address the authorship and copyright ownership of works created by employees. If the intention is for an employee to retain authorship despite creating a work in the course of their duties (which would be unusual for most standard corporate creations but might apply in specific academic or artistic contexts), this must be explicitly stated as a "contrary stipulation."
• Commissioning Works from Japanese Entities: When a U.S. company commissions a work from a Japanese individual or company, it's vital to ensure that the contract includes a clear assignment of all necessary copyright (economic rights) from the Japanese creator/entity to the U.S. company. If commissioning a Japanese company, that Japanese company's ownership of its own employees' creations will first be determined by Article 15. The U.S. commissioner then needs to secure rights from that Japanese company. Simply relying on U.S. work-made-for-hire principles will not suffice.
• Dispatched Workers and Contractors: The application of Article 15 to dispatched workers or independent contractors remains a fact-intensive inquiry. U.S. companies engaging such individuals in Japan should seek legal advice and ensure contracts meticulously define authorship and provide for the assignment of rights.

Conclusion

Japan's shokumu chosaku doctrine under Article 15 of its Copyright Act provides a clear, albeit sometimes complex, framework for determining authorship and initial copyright ownership when works are created within an employment context. By establishing the employer as the author under specific conditions—most notably for all works except computer programs, the requirement of publication under the employer's name—the law seeks to balance the interests of employers who invest in creative output with the general principle of creator authorship. The waiver of the publication-name requirement for computer programs reflects a pragmatic approach to modern software development and distribution. For all entities involved in the creation or commissioning of copyrighted works in Japan, a thorough understanding of these rules and the diligent use of clear contractual stipulations are essential to secure desired intellectual property rights and avoid future disputes.