Private Copying in Japan: What are the Limits for Personal Use?

In an era where technology allows for easy duplication of content, the ability to make copies for personal use is a common expectation. Japanese copyright law, like that of many other countries, recognizes a limitation on copyright for "reproduction for private use" (私的使用のための複製 - shiteki shiyō no tame no fukusei). However, this privilege is not absolute and is subject to a number of important conditions and exceptions, particularly in the context of digital technologies and online content. This article explores the scope and limits of private copying under Article 30 of the Japanese Copyright Act.

The General Rule: Reproduction for Private Use (Article 30, Paragraph 1)

The fundamental provision for private copying is found in Article 30, Paragraph 1 of the Copyright Act. It states that a copyrighted work may be reproduced by the user for the purpose of their own "personal use, family use, or other uses within a similarly limited circle."

Key aspects of this general permission include:

• Purpose of Use: The copy must be intended for use within a genuinely private sphere. This "limited circle" is interpreted more narrowly than the general "public" and typically does not extend to, for example, larger hobby groups or workplace colleagues, even if the number of individuals is small.
• Who Makes the Copy: The reproduction must generally be made by the individual who will be using it. There are practical understandings for situations where someone might assist, such as an adult making a copy for a child or for a person with a disability who cannot operate the copying equipment themselves.
  However, this does not extend to third-party commercial services. For example, the IP High Court in the JISUI Daikō (Self-Digitization Proxy) Case (October 22, 2014) ruled that businesses offering to scan and digitize books on behalf of individuals were, in fact, the entities making the reproductions, and such activities did not qualify as permissible private copying by the end-user. This is distinct from an individual using a publicly accessible photocopier to make their own copies.
• Adaptation for Private Use: The private use exception also extends to certain modifications. Under Article 47-6, Paragraph 1, Item 1, if reproduction is permitted under Article 30(1), then translating, arranging musically, transforming, or otherwise adapting the work for that private use is also generally permissible.
• Limitations on Subsequent Use: Copies made legitimately for private use cannot subsequently be used for other purposes, such as public distribution or public presentation, without infringing copyright. Article 49 of the Act deems such off-purpose uses as infringements.

Significant Exclusions from the Private Copying Privilege

While Article 30(1) provides a general allowance, it is significantly curtailed by several important exclusions, many of which address challenges posed by modern technology:

1. Use of Publicly Available Automated Copying Equipment (Article 30(1)(i))

The private copying exception does not apply if the reproduction is made using "automated reproducing machines" (自動複製機器 - jidō fukusei kiki) that are installed for use by the general public.
This exclusion, introduced in 1984, primarily targets machines designed for audio or audiovisual duplication (e.g., dubbing machines that might be found in retail stores for public use).
However, there is a crucial carve-out: machines that are solely for reproducing documents or pictures (i.e., typical photocopiers) are, for the time being, exempt from this exclusion due to a supplementary provision (Supplementary Provisions, Article 5-2). Thus, photocopying a book for private study at a public library copier is generally permissible under Article 30(1), assuming other conditions are met.

2. Circumvention of Technical Protection Measures (Article 30(1)(ii))

A critical limitation in the digital age is that private copying is not permitted if it involves circumventing "technical protection measures" (技術的保護手段 - gijutsuteki hogo shudan), commonly known as copy-protection or anti-copying technologies. This exclusion applies if the user making the copy knows that such circumvention is occurring.
This provision was added in 1999. The definition of "technical protection measures" (Article 2, Paragraph 1, Item 20) has since been interpreted and amended (notably in 2012) to cover technologies that, while perhaps primarily functioning as access controls (like DVD encryption), effectively prevent copying when bypassed (e.g., "ripping" a DVD). Therefore, making a private copy by breaking such digital locks is an infringement.

3. Copying of Illegally Transmitted Works (e.g., "Pirate" Downloads) (Article 30(1)(iii))

Introduced in 2009 and further reinforced, this provision states that the private copying exception does not apply to the act of making a sound or visual recording of a work that has been publicly transmitted unlawfully (e.g., music or movies illegally uploaded to the internet), if the person making the recording is aware that the transmission is unlawful.

• Criminalization of Certain Downloads: A 2012 amendment to the Copyright Act (Article 119, Paragraph 3) took this further by introducing criminal penalties (imprisonment of up to 2 years or a fine of up to 2 million yen) for knowingly downloading and making sound or visual recordings of such illegally uploaded copyrighted material that is offered to the public for a fee in Japan (有償著作物等 - yūshō chosakubutsu tō – essentially, commercially available works). This significantly impacted the legality of downloading unauthorized commercial music and videos, even for personal use.
• Streaming vs. Downloading: It's generally understood that transient reproductions made in the course of lawful streaming (e.g., temporary browser caching while watching a video on a legitimate platform) are often covered by other specific copyright limitations (such as those found in Article 47-4, Paragraph 1, Item 2, which evolved from the former Article 47-8) and would not typically fall afoul of the prohibition against recording illegally transmitted works. The focus of Article 30(1)(iii) is more on making a more permanent recording from an illegal source.

The Private Recording Compensation System (Articles 30(2) and 104-2 et seq.)

In response to the ease of high-quality digital copying for private use, Japan introduced a "Private Recording Compensation System" (私的録音録画補償金制度 - shiteki rokuon rokuga hoshōkin seido) in 1992.
Under Article 30, Paragraph 2, persons who make digital sound or visual recordings for private use (excluding those types of copying that are outright prohibited, as detailed above) are required to pay compensation to copyright holders, performers, and phonogram producers.

This system is implemented through a levy imposed on specific types of digital recording equipment and recording media at the point of manufacture or importation. The collected funds are then distributed to the respective rights holders through designated collecting societies. Historically, these were SARAH (Society for Administration of Remuneration for Audio Home Recording) for audio recordings and SARVH (Society for Administration of Remuneration for Video Home Recording) for visual recordings.

However, this system has faced significant operational challenges, particularly with the rapid evolution of recording technologies and consumer behavior. A pivotal IP High Court decision in the Toshiba Private Recording Compensation Case (December 22, 2011) found that certain types of digital television recorders (specifically, those with non-removable hard drives and primarily designed for time-shifting broadcast TV) did not fall under the scope of the implementing cabinet order that specified which devices were subject to the levy. This ruling effectively crippled the video recording compensation scheme, and SARVH was eventually dissolved in 2015. While the audio recording compensation system (SARAH) continues to operate, it too faces challenges in adapting to new forms of digital music consumption and recording.

Interaction with Author's Moral Rights

It is a fundamental principle of Japanese copyright law (Article 50) that limitations on economic rights (copyright) do not automatically imply limitations on an author's moral rights. Therefore, even if an act of reproduction is permissible for private use under Article 30, it must not infringe the author's moral rights. For instance, making a private copy and then altering it in a way that harms the author's honor or reputation could still infringe the author's right of integrity (Article 20).

However, modifications made strictly within the private sphere (e.g., for personal enjoyment without public dissemination) might be less likely to be considered as "against the author's will" or as causing harm to their reputation, depending on the specific nature and extent of the alteration.

The "Movie Theft Prevention Act"

Separate from the Copyright Act, the "Act on Prevention of Unauthorized Recording of Movies in Theaters" (映画盗撮防止法 - Eiga Tōsatsu Bōshi Hō), enacted in 2007, specifically addresses the issue of recording films in cinemas. This law prohibits the unauthorized sound or visual recording of movies being screened in theaters during their initial theatrical release period in Japan (currently, for the first 8 months from the date of initial release in Japan). Importantly, such in-theater recording is not excused by the private copying provision of Article 30(1), even if done for personal use, and is subject to both civil remedies and criminal penalties.

Conclusion

The right to make copies for private use under Article 30 of the Japanese Copyright Act provides a valuable privilege for individuals. However, it is far from an unrestricted right. The rise of digital technologies has led to significant legislative and judicial refinements, resulting in crucial exclusions:

• Copying using most publicly available automated machines (other than standard document photocopiers) is not permitted.
• Circumventing technical protection measures (copy protection) to make private copies is prohibited.
• Knowingly making recordings from illegally uploaded online sources is prohibited, and doing so for commercially available works can even attract criminal penalties.

Furthermore, the private recording compensation system, designed to remunerate rights holders for digital private copying, has faced substantial difficulties in keeping pace with technology, especially for visual recordings. Finally, even where private copying of economic rights is allowed, the author's moral rights must still be respected. This complex interplay of permissions and restrictions reflects Japan's ongoing efforts to balance user convenience with the legitimate interests of creators and copyright holders in the digital age.