Is it 'Fair Use' in Japan? Exploring Copyright Limitations and the Concept of 'Inyo' (Quotation)

Japanese Attorney at Law - Bengoshi L.L.

• 9 min read

Copyright law, while granting exclusive rights to creators, is not absolute. To foster cultural development, encourage education, and ensure a vibrant public discourse, legal systems worldwide incorporate limitations and exceptions to these exclusive rights. In the United States, the doctrine of "Fair Use" provides a flexible, factor-based defense to copyright infringement. Japan, however, takes a different approach. Instead of a broad, overarching fair use principle, the Japanese Copyright Act (著作権法 - Chosakuken-hō) features a detailed list of specific, enumerated limitations on copyright (著作権の制限 - chosakuken no seigen).

Among these, the provision for "quotation" (引用 - inyō), found in Article 32, is perhaps the most frequently discussed and often considered the closest, though distinct, analogue to certain aspects of fair use. Understanding how Japan permits the use of copyrighted works without the holder's permission, particularly through its quotation rules, is crucial for anyone engaging with copyrighted content in the country.

Unlike the U.S. Fair Use doctrine, which relies on a case-by-case analysis of four statutory factors, Japanese copyright law lists specific situations where copyrighted works can be used without authorization. These limitations are generally interpreted narrowly and are designed to serve particular public interests. Broadly, these limitations can be categorized as serving purposes such as:

  • Ensuring freedom for private and personal actions: This includes provisions for private reproduction (Article 30) and non-profit performances (Article 38).
  • Permitting unavoidable uses: Examples include the incidental inclusion of works in other creations (utsurikomi, Article 30-2) or temporary fixation by broadcasters for their own broadcasts (Article 44).
  • Facilitating new creative and cultural activities: The right of quotation (Article 32) falls squarely into this category.
  • Serving the public interest: This covers uses for educational purposes (Articles 33-35), reporting current events (Article 41), and access to governmental information (Article 13, Article 32(2)).
  • Balancing copyright with other rights, such as property rights: This includes provisions like the right of an owner to exhibit an original work of art (Article 45).
  • Addressing modern digital uses: More recent amendments have introduced "flexible limitations" for uses like those related to AI development and data analysis (e.g., Article 30-4 for "non-enjoyment use" and Article 47-5 for minor uses incidental to computer data processing).

This article will focus primarily on Article 32 – the right of quotation (inyō) – due to its significance and its frequent (though often imprecise) comparison to fair use.

Delving into Quotation (Inyo) under Article 32(1)

Article 32, Paragraph 1 of the Japanese Copyright Act states: "It shall be permissible to make quotations from a work already made public, provided that their extent does not exceed that justified by purposes such as news reporting, criticism, research, etc., and that such quotations are compatible with fair practice."

This provision allows for the use of portions of existing copyrighted works within one's own work without needing the copyright holder's permission, provided certain stringent conditions are met. The underlying rationale is that the ability to refer to and build upon existing knowledge and expression is vital for cultural, academic, and societal progress.

Essential Conditions for Lawful Quotation (Inyo)

For a use to qualify as a lawful quotation under Article 32(1), several cumulative conditions must be satisfied:

  1. The Quoted Work Must Be "Already Made Public" (公表された著作物 - kōhyō sareta chosakubutsu)
    This is a threshold requirement. Unpublished works cannot be freely quoted under this provision. The rationale is to respect the author's right of first publication (公表権 - kōhyō-ken). What constitutes "made public" is defined in Article 4 of the Copyright Act and generally requires issuance of copies or presentation to the public by the copyright holder or with their authorization.
  2. The Quotation Must Be for a "Legitimate Purpose" (報道、批評、研究その他の引用の目的上 - hōdō, hihyō, kenkyū sonota no in'yō no mokuteki-jō)
    The Act explicitly lists "news reporting, criticism, research, etc." as examples of justifiable purposes. The "etc." (その他の - sonota no) indicates that this list is not exhaustive.
    • Evolving Interpretation: While traditional interpretations sometimes limited "other purposes" to those similar in nature to criticism or research, there's a trend towards a broader understanding. The Intellectual Property High Court decision in the Art Appraisal Certificate case (October 13, 2010) is significant here. The court permitted the reproduction of images of artworks on appraisal certificates intended to verify authenticity and prevent forgery, deeming this a legitimate purpose under Article 32. It reasoned that such use ultimately supports the value of genuine works and the rights of copyright holders, thus aligning with the broader aims of copyright law. This suggests that purposes promoting the fair and beneficial use of works, even outside strict academic or critical contexts, might qualify.
  3. The Quotation Must Be "Compatible with Fair Practice" (公正な慣行に合致すること - kōsei na kankō ni gatchi suru koto)
    This condition requires that the manner of quotation aligns with generally accepted ethical standards and customs within the relevant field or industry. What constitutes "fair practice" can vary. For instance, academic citation styles are a well-established fair practice in scholarly writing. If a clear industry practice for quotation exists, it should generally be followed.
    Some legal scholars argue that if no specific "fair practice" has yet developed for a novel type of use or in a new medium, this condition should not automatically bar the quotation, as long as the use is otherwise fair and reasonable.
  4. The Quotation Must Be Within a "Justifiable Extent" (正当な範囲内 - seitō na han'i nai)
    This is often the most debated condition and involves a careful balancing act. It implies that the quotation must be necessary for the legitimate purpose and proportionate. Several sub-elements, largely derived from case law, inform this assessment:The Supreme Court decision in the Parody case (March 28, 1980), although primarily a moral rights case, laid down the "clear distinction" and "principal-subordinate relationship" as key requirements for permissible borrowing (at the time, interpreting older law but influential on Article 32 interpretation). For many years, these two were treated as almost indispensable conditions.However, more recent trends, including the Art Appraisal Certificate case, suggest a move towards a more holistic "comprehensive balancing of interests" (総合衡量論 - sōgō kōryō-ron). This approach focuses on the overall purpose and context, the nature of the works, the necessity of the quotation, and the balance of benefits and harms, without treating the "two requirements" from the Parody case as rigid, absolute prerequisites. The emphasis is on whether the use, viewed as a whole, is truly a "quotation" serving a legitimate purpose within a justifiable scope, rather than an unauthorized exploitation.
    • Clear Distinction (明瞭区別性 - meiryō kubetsu-sei): The quoted material must be clearly distinguishable from the user's own work. This is often achieved through quotation marks, indentation, different fonts, or clear attribution. The audience should be able to easily identify what is quoted and what is original to the user.
    • Principal-Subordinate Relationship (主従関係 - shujū kankei / 附従性 - fujū-sei): Traditionally, a very important factor. The user's own work must be the principal component, and the quoted portion must be subordinate or ancillary to it. The quotation should serve to illustrate, support, or explain the user's own independent expression, rather than forming the bulk or core of the new work. If the quoted material dominates, the use is less likely to be considered within a "justifiable extent."
    • Necessity and Proportionality: The amount and substantiality of the portion quoted must be no more than is reasonably necessary to achieve the legitimate purpose. Quoting an entire work, or a very large portion of it, is rarely justified unless the purpose specifically requires it (e.g., a detailed critique of that specific passage).
    • Impact on the Copyright Holder's Market: While not explicitly listed in the same way as in U.S. Fair Use, the potential harm to the market for the original work is an implicit consideration in assessing the "justifiable extent." A quotation that supplants the need for the original work is unlikely to be considered fair.
  5. Indication of Source (出所の明示 - shussho no meiji) (Article 48)
    Article 48 of the Copyright Act generally requires that when a work is exploited under many of the copyright limitations, including quotation (as per Article 48(1)(i) which refers to reproduction under Art 32), the source of the work must be indicated in a manner and to an extent deemed reasonable according to the purpose and manner of the reproduction or exploitation. While this is a separate obligation from Article 32 itself, failure to indicate the source where it is customary and practicable to do so can weigh against a finding that the quotation was "compatible with fair practice."

Nuances and Specific Scenarios in Quotation

  • Does the Work Containing the Quotation Need to Be Copyrightable?
    Traditional views sometimes implied that for Article 32 to apply, the user's own work, into which the quotation is incorporated, should itself be a substantial, original work. However, the language of Article 32(1) refers to quotation "for purposes such as...criticism, research, etc." and doesn't explicitly require the surrounding material to meet the full criteria of a copyrightable work. The Art Appraisal Certificate case, where images were used on certificates, suggests that the utility and legitimacy of the purpose are key, even if the "new work" (the certificate) has minimal original authorship.
  • Summarizing Quotations (要約引用 - yōyaku in'yō)
    Can one summarize a work and claim it as a quotation under Article 32? This is a debated area. If the summary merely conveys the ideas or facts of the original work without reproducing its specific creative expression, it might not even implicate copyright in the first place (as ideas are not protected). However, if the summary involves condensing and rephrasing the original expression to a significant degree, it could be seen as creating a derivative work (adaptation) rather than a direct quotation.
    Some case law, such as the Chiisana Akuma no Senaka no Kubomi case (Tokyo District Court, October 30, 1998), has allowed extensive summarization within a larger critical work to fall under Article 32, treating it as a form of quotation necessary for the critique. The specific facts, purpose, and extent of expressive borrowing are crucial.

Inyo vs. U.S. Fair Use: A Comparative Perspective

While inyo serves some similar functions to the U.S. Fair Use doctrine, they are structurally and operationally distinct:

  • Nature of the Doctrine:
    • U.S. Fair Use (17 U.S.C. § 107): A flexible, equitable defense based on a four-factor balancing test (purpose and character of the use; nature of the copyrighted work; amount and substantiality of the portion used; and effect of the use upon the potential market). It is an open-ended doctrine applied case-by-case.
    • Japanese Inyo (Article 32): A specific, enumerated limitation with a set of relatively defined conditions that must all be met. While there's room for interpretation (especially regarding "justifiable extent" and "fair practice"), it is less open-ended than the U.S. four-factor test.
  • Transformative Use:
    • U.S. Fair Use: "Transformative use" – using the original work in a new way or for a new purpose, often adding new meaning or message – is a highly significant factor favoring fair use.
    • Japanese Inyo: The concept of "transformative use" is not explicitly part of Article 32. The emphasis is more on the quotation being subordinate and used to support the user's own primary expression, rather than transforming the quoted work itself. Parody, which is often transformative, has a difficult history under Japanese quotation rules due to the traditional principal-subordinate requirement.
  • Commercial Nature:
    • U.S. Fair Use: Commercial use tends to weigh against fair use, but it's not determinative; many commercial uses can be fair.
    • Japanese Inyo: Article 32 does not explicitly bar commercial uses. Quotations in commercial news reporting, reviews, or academic publications are common. The key is meeting all the conditions, regardless of the commercial nature of the user's work.
  • Predictability and Flexibility:
    • U.S. Fair Use: Highly flexible but can be unpredictable due to its case-by-case, factor-based nature.
    • Japanese Inyo: The specific conditions offer a degree of predictability if followed closely, but the interpretation of terms like "justifiable extent" and "fair practice" still requires careful judgment. The system is generally less flexible than U.S. Fair Use for uses that don't fit neatly into an enumerated limitation.

To provide a fuller picture beyond quotation, it's worth briefly noting other important limitations that exist in Japanese copyright law, some of which have no direct parallel or a very different scope compared to U.S. exceptions:

  • Reproduction for Private Use (Article 30): Allows individuals to reproduce works for personal or family use, with significant exceptions (e.g., for works protected by anti-copying technology, or illegal downloads of infringing content).
  • Incidental Inclusion (Utsurikomi) (Article 30-2): Permits the minor, unavoidable inclusion of copyrighted works in photographs, films, or broadcasts created by the user.
  • Non-Profit Performances, etc. (Article 38): Allows non-commercial, free-of-charge public performances, presentations, or diffusions of published works, provided no remuneration is paid to performers.
  • Uses for Information Analysis, AI development, etc. (Articles 30-4, 47-4, 47-5): Recent "flexible limitations" allow certain uses of works for purposes such as technological development, information analysis, or by computer programs for data processing, often where the "enjoyment" of the work's expressive content is not the objective.

Conclusion

While Japan does not have a broad, overarching "Fair Use" doctrine akin to that in the United States, its Copyright Act provides a detailed framework of specific limitations and exceptions. The right of quotation (inyo) under Article 32 is a key provision that allows for the incorporation of existing works into new creations for purposes like criticism, research, and reporting, subject to stringent conditions regarding publicity of the source work, legitimate purpose, fair practice, and, crucially, justifiable extent. For businesses and creators, understanding these specific conditions, particularly the evolving judicial interpretation of what constitutes a justifiable quotation, is essential for legally and ethically engaging with copyrighted material in Japan. Simply assuming that a use permissible under U.S. Fair Use will automatically qualify as a lawful quotation or fall under another limitation in Japan can lead to significant legal risks.