Social networking services (SNS) are indispensable tools for businesses globally, and Japan, with its highly active online population, is no exception. However, the ease of sharing content on platforms like X (formerly Twitter), Instagram, Facebook, YouTube, and TikTok brings with it significant copyright risks. For US companies engaging with the Japanese market, understanding and navigating Japan's specific copyright landscape is crucial to avoid legal pitfalls and maintain a positive brand image.

Japanese Copyright Law Fundamentals for SNS

At its core, Japan's Copyright Act (著作権法 - Chosakuken Hō) aims to protect the rights of authors of creative works while ensuring the fair use of those works. For businesses using SNS, several key aspects are paramount:

1. Protected Works (著作物 - chosakubutsu): Copyright protection in Japan automatically extends to original expressions of thoughts or feelings that fall within the literary, scientific, artistic, or musical domain. This includes text, images, photographs, illustrations, videos, music (both compositions and lyrics), and even computer programs. Ideas, facts, or very short, commonplace phrases are generally not protected.
2. Exclusive Economic Rights: Copyright holders possess a bundle of exclusive rights, including:
   • Right of Reproduction (複製権 - fukuseiken): The right to copy a work. Simply saving an image or downloading a video is an act of reproduction.
   • Right of Public Transmission (公衆送信権 - kōshū sōshinken): This is highly relevant for SNS. It includes the right to upload content to a server, making it available to the public (送信可能化 - sōshin kanōka), and the right to transmit it (e.g., streaming). Posting content on an SNS platform generally involves both making it transmittable and enabling its public transmission.
   • Right of Adaptation (翻案権 - hon'anken): The right to translate, arrange, transform, or create derivative works based on the original. Creating a meme from an image, or a summary that closely tracks original expression, could be an adaptation.
3. Moral Rights (著作者人格権 - chosakusha jinkakuken): Unique to Japanese (and many civil law) copyright systems, moral rights are personal to the author and are inalienable (cannot be transferred, though their exercise can be waived to some extent by contract). They include:
   • Right to Make the Work Public (公表権 - kōhyōken): The right to decide if and when to publish a work.
   • Right of Attribution (氏名表示権 - shimei hyōjiken): The right to be identified as the author and to decide how their name is displayed.
   • Right of Integrity (同一性保持権 - dōitsusei hojiken): The right to prevent alterations, cuts, or other modifications to the work against the author's will, especially if they are prejudicial to their honor or reputation.

Moral rights are particularly pertinent in the SNS context, as content is often reformatted, cropped, or used in ways the original author did not intend.

Permissible Uses: The Strict "Quotation" Exception

Unlike the United States' broad "fair use" doctrine, Japan has a much narrower concept of permissible unlicensed use, primarily through the "quotation" (引用 - in'yō) exception under Article 32 of the Copyright Act. To qualify as a lawful quotation, several strict conditions must generally be met:

1. Publicly Available Work: The quoted work must have already been made public.
2. Compatibility with Fair Practice: The quotation must be consistent with fair practices. This is a somewhat flexible standard but can be influenced by industry norms and the nature of the use.
3. Legitimate Purpose and Scope: The quotation must be within a "justifiable scope" for purposes such as criticism, research, or news reporting. The use must be genuinely necessary for the new work.
4. Distinction and Subordination: The quoted portion must be clearly distinguishable from the user's own content, and the user's work must be the principal element, with the quoted material being subordinate. Extensive copying is generally not permitted.
5. Indication of Source: The source of the quoted work must be clearly indicated, as is customary.
6. No Harm to Author's Moral Rights: The quotation must not alter the work in a way that infringes the author's right of integrity without justification.

Many typical SNS sharing activities, such as reposting an image with a short comment, may struggle to meet these stringent requirements, particularly the subordination and justifiable scope elements.

Copyright Issues in Common SNS Activities

Let's examine some common SNS activities and their copyright implications in Japan:

1. Reposting, Retweeting, and Sharing Content

Simply sharing or retweeting content can raise copyright issues, especially concerning moral rights. The "Retweet Case" (Supreme Court of Japan, judgment of July 21, 2020) is instructive. In this case, a user retweeted a tweet containing a photograph that had been posted without the photographer's permission. The platform's automatic processing for display in the retweeter's timeline trimmed the photograph, cutting off the photographer's name (copyright notice). The Supreme Court found that the retweeter had infringed the photographer's moral right of attribution (氏名表示権 - shimei hyōjiken). The Intellectual Property High Court, in an earlier stage of this case (judgment of April 25, 2018), had also found an infringement of the right of integrity (同一性保持権 - dōitsusei hojiken) due to the trimming.

This case highlights that even automated platform functionalities can lead to moral rights infringements by users who share content. Businesses should be mindful that:

• Sharing content that was originally posted without authorization from the copyright holder carries a high risk.
• If a platform's sharing mechanism alters the original work (e.g., by cropping or removing attribution), it could lead to moral rights issues for the sharer.
• Simply linking to content is generally safer than embedding or re-uploading it directly.

2. Using Screenshots ("Sukusho" - スクショ)

Taking a screenshot of another person's post or an image and then re-posting it as a new image is a common practice but is fraught with copyright risk. This act clearly involves reproduction and public transmission of the original work.

A recent Tokyo District Court judgment (December 10, 2021) found a user liable for copyright infringement for posting screenshots of another user's tweets. The court recognized the short tweets as copyrighted works due to their expressive nature. Critically, it held that the act of screenshotting and reposting, rather than using the platform's official "quote tweet" function, violated the platform's terms of service. This violation of terms was considered to mean the use was not in line with "fair practice," thereby negating the possibility of it being a lawful quotation under Article 32.

While this is a lower court decision, it signals that the method of sharing can impact the "fair practice" assessment for quotations. Businesses should strongly discourage employees from using screenshots to share others' copyrighted content and instead encourage the use of official platform sharing tools, where available and appropriate.

3. "Utattemita" (Song Covers) and Music Use

Posting videos of oneself singing popular songs ("歌ってみた" - utattemita videos) is a widespread phenomenon.

• Musical Works (Lyrics and Composition): For the underlying song (lyrics and music), major Japanese collective management organizations like JASRAC (Japanese Society for Rights of Authors, Composers and Publishers) and NexTone Inc. have agreements with many popular SNS platforms (e.g., YouTube, TikTok, Instagram). These agreements often allow users to post covers of songs managed by these organizations without needing individual licenses, provided the use is within the scope of the platform's license (e.g., non-commercial, user-generated content). Businesses should verify if the platform they intend to use has such a comprehensive license.
• Sound Recordings (Neighboring Rights): A crucial distinction is the copyright in the musical work itself versus the neighboring rights (著作隣接権 - chosaku rinsetsuken) in a specific sound recording of that song. If a business or individual uses a commercially released sound recording (e.g., from a CD or official music video) as background music or for a lip-sync video, a separate license from the record producer (the entity that created the original sound recording, typically a record label) is generally required. JASRAC/NexTone licenses typically do not cover this. Some platforms are now also securing licenses for sound recordings, so it's important to check the platform's specific music usage policies. A Tokyo District Court judgment on December 20, 2016, found a user infringed the sound recording rights of a karaoke company by uploading a video of themselves singing to the company's karaoke track.
• Performers' Rights: Performers (singers, musicians) also have neighboring rights, including the right to control the recording and public transmission of their performances. For artists signed to record labels, these rights are often transferred to or managed by the label.

4. "Odottemita" (Dance Covers) and Choreography

Videos featuring users performing dances ("踊ってみた" - odottemita videos), often mimicking professional artists or popular trends, also have copyright implications.

• Copyright in Choreography: Choreography can be protected as a "dramatic work" or "choreographic work" under the Japanese Copyright Act if it is sufficiently original and creative (Article 10, Paragraph 1, Item 3). Mere combinations of common steps are unlikely to qualify, but distinctive and complex routines can.
• Licensing Challenges: Unlike music, there is no widespread collective licensing system for choreography in Japan for SNS use. This means that, in principle, permission from the choreographer (or other rights holder) is required to perform and publicly transmit a copyrighted dance.
• Current Practice: In practice, many "odottemita" videos are created without explicit licenses, sometimes relying on an implied permission if the original artist encourages such fan activity. However, this is a legally uncertain area. If a choreographer or artist explicitly prohibits such use, it should be respected. Businesses should be particularly cautious about using copyrighted choreography in their promotional content without clear authorization.

5. "Kirinuki Douga" (Clip/Highlight Videos)

The practice of creating "切り抜き動画" (kirinuki dōga) – short clips or highlight reels edited from longer videos (e.g., game streams, talk shows, anime) – has become popular.

• Derivative Works and Infringement: Creating such clips typically involves acts of reproduction, adaptation (editing, adding captions/effects), and public transmission. This can infringe the rights of the original video's copyright holder and potentially the moral rights (especially the right of integrity) of the creators and performers involved.
• Monetization and Permissions: While some original content creators permit or even encourage "kirinuki" channels under specific revenue-sharing or guideline-based models, doing so without explicit permission from all relevant rights holders is a clear infringement. Businesses should avoid creating or commissioning "kirinuki" content from third-party sources without verifying the underlying rights.

The Role of Social Media Platform Terms of Service (ToS)

SNS platform ToS play a significant role:

• License to the Platform: Users typically grant the platform a broad, worldwide, non-exclusive, royalty-free license to use, reproduce, distribute, and display the content they upload. This is necessary for the platform to function.
• Inter-User Sharing: Some ToS may explicitly permit users to share or reuse other users' content within the platform's ecosystem using its built-in functionalities (e.g., TikTok's features for creating duet or stitch videos).
• Limitations: Importantly, platform ToS cannot override fundamental copyright law. A platform cannot grant users rights that it does not possess. Furthermore, moral rights are inalienable; while an author might consent to certain uses or modifications, a blanket waiver in ToS is unlikely to extinguish these rights entirely against all forms of alteration. As seen in the screenshot case, ToS can also be used to argue that a certain method of sharing is not "fair practice" for quotation purposes.

Consequences of Copyright Infringement in Japan

Copyright infringement in Japan can lead to:

• Civil Remedies:
  • Injunctions (差止請求 - sashitome seikyū): Court orders to stop the infringing activity.
  • Damages (損害賠償 - songai baishō): Compensation for the rights holder's losses, which can be calculated based on lost profits, the infringer's profits, or a reasonable royalty.
  • Measures to Restore Reputation (名誉回復措置 - meiyo kaifuku sochi): Such as demanding a public apology or correction.
• Criminal Penalties: In cases of willful and serious infringement, criminal charges can be brought, potentially leading to fines (up to JPY 10 million for individuals, up to JPY 300 million for corporations in some cases) and/or imprisonment (up to 10 years).
• Reputational Damage: For businesses, being found liable for copyright infringement can significantly damage brand reputation and consumer trust.

Best Practices for US Companies Using SNS in Japan

To mitigate copyright risks while effectively using SNS in Japan:

1. Develop a Clear Internal SNS Copyright Policy: This policy should guide employees and marketing teams on permissible content creation and sharing practices.
2. Educate Employees: Conduct regular training on Japanese copyright basics, the importance of respecting creators' rights, and the company's SNS policy.
3. Prioritize Original Content: Creating and sharing your own original photos, videos, and text is always the safest approach.
4. Obtain Proper Licenses for Third-Party Content:
   • For music, utilize platform-licensed tracks where available or secure direct licenses. Be aware of the distinction between musical work rights and sound recording rights.
   • For images and videos, use reputable stock services with clear licensing terms appropriate for commercial SNS use, or obtain direct permission from the copyright holder. Do not assume images found via general web searches are free to use.
5. Understand and Correctly Apply "Quotation" Rules: If relying on the quotation exception, ensure all strict Japanese requirements are meticulously met. When in doubt, err on the side of seeking permission.
6. Respect Moral Rights:
   • Always provide attribution to creators when possible and appropriate.
   • Avoid modifying works (cropping, editing, adding filters/text) in a way that could be seen as detrimental to the author's intent or reputation, without their consent.
7. Vet User-Generated Content (UGC) Campaigns: If running campaigns that involve users submitting content (e.g., photos, videos), ensure your terms and conditions clearly address:
   • Who owns the IP in the submitted UGC.
   • The scope of the license users grant your company to use their UGC.
   • Users' responsibility for ensuring their submissions do not infringe third-party rights.
8. Utilize Platform Sharing Tools: Where possible, use the official sharing functionalities of SNS platforms (e.g., X's "Repost" or "Quote" features, Instagram's "Share to Story" for certain content) rather than manually downloading and re-uploading or screenshotting. However, remember the lessons from the Retweet Case regarding potential moral rights issues even with platform tools.
9. Respond to Takedown Notices Promptly and Professionally: If you receive a copyright infringement notice, investigate it immediately and cooperate with rights holders and platforms to resolve the issue.
10. Consult with Legal Experts: Japanese copyright law has its own distinct features. For specific campaigns, complex uses, or if any doubt exists, seek advice from lawyers specializing in Japanese intellectual property and media law.

Conclusion

Navigating copyright on social media in Japan requires diligence, an understanding of local legal nuances, and a fundamental respect for the rights of creators. While the potential for infringement is ever-present in the fast-paced digital environment, by implementing robust internal policies, educating teams, and prioritizing licensed or original content, US companies can effectively leverage SNS to engage with the Japanese market while minimizing legal risks.