Fair Use in Japanese Academia? Copyright Exceptions for Lectures, Quotations, and Impact on Moral Rights

Japanese Attorney at Law - Bengoshi L.L.

• 8 min read

The academic environment thrives on the exchange of ideas and the critical analysis of existing works. Professors and students frequently need to use copyrighted materials—from scholarly articles and literary texts to artistic images and musical scores—for teaching, research, and discussion. While the United States employs a broad "fair use" doctrine, Japanese copyright law takes a different approach, offering a series of specific, enumerated exceptions (limitations on rights) that permit certain uses without the copyright holder's permission. Understanding these exceptions, their strict conditions, and their interplay with authors' powerful moral rights is crucial for anyone operating within or interacting with Japanese academia.

Classroom Use: Reproduction for Educational Purposes (Copyright Act Article 35)

One of the most relevant exceptions for educators is Article 35(1) of the Japanese Copyright Act, which allows for the reproduction of copyrighted works for educational purposes under specific conditions. Its aim is to facilitate the educational process by permitting necessary copying for lessons.

Key Conditions for Article 35(1) to Apply:

  1. Eligible Reproducer and Institution: The reproduction must be made by a person in charge of teaching (e.g., a professor) or a person receiving instruction (a student) at a non-profit educational institution established for educational purposes (such as a school or university).
  2. Purpose of Use: "In the Course of Lessons" (jugyō no katei): The reproduction must be for the purpose of use "in the course of lessons." This generally includes lectures, seminars, practical training, and experiments that are part of the institution's curriculum.
    • A professor's final lecture for a credited university course, even if specially opened to some members of the public (like university staff or even external guests, in addition to enrolled students), could still fall within "the course of lessons," provided its primary character remains educational and tied to the curriculum. However, the more public and less curriculum-focused an event becomes, the less likely Article 35 applies.
  3. Published Work: The copyrighted work being reproduced must generally be a "published work."
  4. "Extent Deemed Necessary": The reproduction must be limited to the "extent deemed necessary" for the purpose of use in the lessons. This has both quantitative and qualitative dimensions:
    • Quantity: The number of copies made should typically correspond to the number of students in the class and the teacher. Widespread distribution beyond this is not covered.
    • Quality/Portion: Copying an entire textbook when only a chapter is needed, or making high-resolution, print-quality reproductions of artistic works for mere appreciation rather than specific analytical discussion, would likely exceed what is "necessary."
  5. No Unreasonable Prejudice to Copyright Owner's Interests: This is a critical balancing provision. The reproduction must not "unreasonably prejudice the interests of the copyright owner in light of the nature and the purpose of the work as well as the number of copies and the manner of reproduction."
    • For example, distributing high-quality color photocopies of an entire painting to a class of 150 students (as in a hypothetical scenario where a professor distributes copies of "Painter A's" work) could be seen as unreasonably prejudicial. Such copies might substitute for the purchase of legitimate reproductions (postcards, art books) or harm licensing opportunities. In such cases, merely displaying a slide of the painting during the lecture (as with "Painter B's" work in the same hypothetical) would be far less prejudicial, as slides are transient and not distributed. The PDF's commentary implies that for artistic works, distributing copies is viewed much more strictly under this provision than in-class projection.
      If reproduction is permitted under Article 35(1), then the subsequent distribution of those copies to students enrolled in the specific course of lessons is also generally permitted under Article 47-6 of the Copyright Act.

Presenting Works in Non-Profit Settings (Copyright Act Article 38(1))

Beyond classroom copying, Japanese copyright law also permits certain public uses of already published works for non-profit purposes under Article 38(1). This can be relevant for university lectures, especially those open to a wider audience.

Conditions for Article 38(1) to Apply:

  1. Published Work: The work must have already been lawfully made public.
  2. Non-Profit Purpose: The performance, recitation, screening, or other public presentation must be for non-profit purposes.
  3. No Admission Fee: No fees may be charged to the audience or spectators specifically for attending the event where the work is presented.
  4. No Remuneration to Performers/Presenters: No remuneration (beyond actual expenses) may be paid to the individuals performing or presenting the work.

Application to Academic Lectures:

  • Screening Slides of Art/Playing Music Excerpts: A professor showing slides of paintings or playing short musical excerpts during a university lecture that is part of the curriculum and for which no separate admission fee is charged would likely meet these conditions. University tuition fees are generally not considered a "fee charged to the audience" for a specific lecture's copyright use, nor is a professor's regular salary considered "remuneration" for the specific act of performing or screening a work within their lecture.
  • Reading Aloud from Texts: Similarly, a professor reading excerpts from a critical review or a literary work to illustrate a point in a non-profit lecture would likely fall under this exception for "public recitation" (kōjutsu).

The Art of Quoting: Using Others' Works for Criticism and Research (Copyright Act Article 32(1))

Quotation (in'yō) is a fundamental tool in academic discourse. Article 32(1) of the Japanese Copyright Act permits the quotation of published copyrighted works, provided it is compatible with "fair practice" and the extent of the quotation is "justified by the purpose, such as news reporting, criticism, or research."

Key Conditions for Lawful Quotation (developed through case law and interpretation):

  1. Published Work: The work being quoted must have been lawfully made public.
  2. "Fair Practice" and "Justified by the Purpose": This is where most of the legal analysis lies. Courts have often looked to several factors:
    • Clear Distinction (Meiryō Kubetsusei): The quoted material must be clearly distinguishable from the quoting author's own text or work (e.g., through quotation marks, indentation, different font, clear visual separation for images).
    • Principal and Subordinate Relationship (Shujū Kankei): The quoting author's work must be the principal or main part, and the quoted material must be subordinate to it, serving to illustrate, support, or critique the author's own arguments. The quotation should not form the substantial core of the new work.
    • Necessity for the Purpose: The quotation must be genuinely necessary for the stated purpose (e.g., to accurately represent a point being criticized, to provide evidence for a research claim).
    • No Unjustified Alteration: While Article 43(ii) permits "translation" of a work for the purpose of quoting it under Article 32, other substantial alterations to the quoted work might infringe the author's moral right of integrity (discussed below).
  3. Indication of Source (Article 48): When quoting, the source of the work (e.g., author's name, title of work, publication details) must generally be indicated in a manner and to an extent deemed reasonable according to fair practice.

Applying Quotation Rules in Academic Contexts:

  • Textual Quotations in Lectures/Articles: A professor reading a short passage from a published critique during a lecture to discuss it, or including such a passage in a research paper, can be a valid quotation if the above conditions are met. However, failing to orally attribute the source during a lecture (e.g., not mentioning the critic's name or the title of their work) could be problematic under Article 48 and potentially infringe the moral right of attribution.
  • Reproducing Images (e.g., Paintings) in Academic Works: This is often more complex.
    • If a professor includes a reproduction of a painting (or part of it) in an online academic article for critical analysis, it could be a quotation. However, the "subordinate relationship" requirement can be tricky. If the image is large, high-quality, and serves as an object of aesthetic appreciation in its own right rather than merely illustrating a specific critical point, courts might find it exceeds the justified extent. Some legal commentary suggests that for visual art, using lower-resolution images or thumbnails, especially in online contexts, might be more aligned with "fair practice" if the purpose is purely analytical.
    • Reproducing only part of an artwork (e.g., a detail from a painting) might be justified if the academic analysis specifically focuses on that part. However, this can also raise moral rights issues (see below).
  • Summarizing vs. Direct Quotation: If an academic work doesn't quote directly but provides a summary of another's copyrighted text, this is technically an act of adaptation, not direct quotation. Article 32(1) primarily covers direct quotation. While some lower court judgments (e.g., Tokyo District Court, October 30, 1998, the Blood Type and Personality Social History Case) have suggested that a faithful summary could potentially be treated like a quotation if it accurately reflects the original's intent and serves a legitimate quotation purpose, this is not a settled area. A summary that distorts the original meaning would certainly not be permissible and could infringe both economic rights (adaptation) and moral rights.

The Lingering Impact of Moral Rights (Copyright Act Article 50)

A critical principle in Japanese copyright law, enshrined in Article 50, is that the limitations and exceptions to economic rights (like those in Articles 32, 35, and 38) shall not be interpreted as affecting the moral rights of the author (chosakusha jinkaku ken). Authors in Japan enjoy strong moral rights, which are personal to them and generally inalienable. Even if a use is permissible under an economic rights exception, it can still infringe moral rights if not handled appropriately.

Key Moral Rights in Academic Contexts:

  1. Right of Integrity (Dōitsusei Hoji Ken) - Article 20: This is the right to preserve the work and its title against any modification, cutting, or other alteration that is contrary to the author's will.
    • Partial Reproduction/Quotation: If a professor, for an online article, reproduces only a portion of a painting (e.g., showing only a female figure from a painting that originally depicted a couple), this is an alteration (a "cutting"). Even if intended for focused critique, if the original artist (Painter A in a hypothetical scenario) feels this distorts the work or is contrary to their intent (e.g., if the depiction of the couple together was integral to the meaning), it could be an infringement of the right of integrity. Article 20(2)(iv) allows for alterations that are "unavoidable in light of the nature of the work as well as the purpose and manner of exploitation," but this is often narrowly construed. It would need to be shown why using the entire relevant portion of the artwork was truly not feasible for the academic purpose.
    • Summaries: If a professor's summary of a critic's work (Critic C) is found to distort the original meaning or intent of C's critique, this would be a clear infringement of C's right of integrity.
  2. Right of Attribution (Indication of Name - Shimei Hyōji Ken) - Article 19: Authors have the right to decide whether and how their name (real name or pseudonym) is displayed on their work.
    • Failing to mention the author's name and the title of a work when quoting it orally in a lecture is a potential infringement of this right. While Article 19(3) allows for omission if it aligns with fair practice and is unlikely to harm the author's claim to authorship, in academic settings, proper attribution is generally considered a core fair practice.
    • For published academic articles, providing full and accurate source information (as the professor did in the website article example by footnoting Painter A's and Critic C's details) satisfies this right.
  3. Deemed Infringement of Moral Rights (Article 113(11)): Using a work in a manner that is prejudicial to the author's honor or reputation is deemed an infringement of their moral rights, even if no direct alteration is made.
    • For example, if Painter A felt that selectively cropping his painting of a couple to show only the wife, in a critical academic context, was deeply offensive and damaging to his artistic reputation or personal honor (perhaps because the original work symbolized his marital bond), this provision could theoretically be invoked.
    • Similarly, if Critic C felt that a grossly distorting summary of his work was used to unfairly ridicule his scholarship and thus damage his professional reputation, this could also fall under Article 113(11).

While Japanese copyright law provides several specific exceptions to facilitate educational and research activities, these are not a carte blanche for unrestricted use of copyrighted materials. Each exception comes with precise conditions that must be meticulously met. Furthermore, the strong and independent moral rights of authors mean that even if an economic right is limited by an exception, the manner of use must still respect the author's personal connection to their work, particularly regarding its integrity and proper attribution.

For academics and educational institutions in Japan, this necessitates a careful approach:

  • Always assess if an intended use falls squarely within an exception.
  • Pay close attention to quantitative and qualitative limits, especially for reproductions.
  • Whenever quoting or reproducing, ensure clear distinction, subordination (if applicable), and full, accurate indication of source.
  • Be particularly cautious with alterations, partial reproductions, or summaries, and consider whether they might infringe the author's right of integrity or falsely represent their work.
  • When in doubt, or for uses that go beyond the clear scope of exceptions (e.g., substantial reproductions of entire works, uses for commercial textbooks rather than classroom handouts), seeking permission from the copyright holder remains the most prudent course of action.

A nuanced understanding of these rules is essential for fostering a vibrant academic environment that respects both the advancement of knowledge and the rights of creators.