Protecting Software in Japan: Copyrightability, Scope, and Special Provisions for Programs

Japanese Attorney at Law - Bengoshi L.L.

• 8 min read

In today's digitally driven economy, software stands as a cornerstone asset for businesses across all sectors. Protecting the ingenuity and investment embodied in computer programs is therefore a paramount concern. In Japan, like many industrialized nations, the primary legal framework for safeguarding software is copyright law. While recognized as a form of creative expression, computer programs also possess unique functional characteristics, leading to specific considerations and tailored provisions within the Japanese Copyright Act (著作権法 - Chosakken-hō).

The Japanese Copyright Act explicitly includes "program works" (puroguramu no chosakubutsu) as a distinct category of protected subject matter under Article 10, Paragraph 1, Item (ix). This recognition dates back to a 1985 amendment to the Act, which clarified the copyright status of software.

A "program" itself is defined in Article 2, Paragraph 1, Item (x-2) as "an expression of combined instructions given to a computer so as to make it function and obtain a certain result". This definition underscores that copyright protection attaches to the expression of these instructions—the source code and object code—rather than the abstract ideas or functionalities the program performs.

The Requirement of Creativity (創作性 - sōsaku-sei)

For a computer program to qualify for copyright protection in Japan, it must, like any other work, possess "creativity" (sōsaku-sei). This standard generally requires that the work expresses the author's "individuality" or "personality" (kosei). The threshold for creativity is typically low; novelty or exceptional artistic merit is not required.

However, the very nature of computer programming—often driven by functional necessities, logical constraints, and the syntax of specific programming languages—means that the scope for expressing individuality can sometimes be more limited than in purely artistic works. Despite this, Japanese courts have generally found creativity in programs where the programmer has made choices from multiple possible ways to write the code to achieve a particular result. Early video game cases, such as those involving Space Invaders Part II (Tokyo District Court, December 6, 1982), Strategy X (Osaka District Court, January 26, 1984), and Dig Dug (Tokyo District Court, March 8, 1985), affirmed copyrightability based on the selection and arrangement of instructions that reflected the programmers' creative input.

Conversely, protection may be denied if a program is extremely short, rudimentary, or consists entirely of commonplace or standard sequences of instructions where there is little to no room for personal expression. For instance, the Tokyo High Court, in a decision on June 20, 1989 (the System Science case), and the Intellectual Property High Court, on February 28, 2011 (the Ren'ai no Kamisama or "God of Romance" case), denied protection to very short programs or those comprising only trivial or standard expressive elements, finding them to lack the necessary creativity.

A crucial aspect of software copyright in Japan, as elsewhere, is the idea-expression dichotomy. Copyright protects the literal expression of the program (the code) but does not extend to the underlying ideas, procedures, or methods of operation. Article 10, Paragraph 3 of the Copyright Act explicitly clarifies what is not protected in relation to program works:

  1. Program Languages (プログラム言語 - puroguramu gengo): The programming language itself (e.g., C++, Java, Python, COBOL) is considered a tool or a system of rules for expression, akin to grammar and vocabulary in natural languages. It is not, in itself, a protected expression under copyright.
  2. Rules or Protocols (規約 - kiyakku): This refers to specific conventions, standards, or protocols that ensure interoperability between different programs or facilitate communication between computer systems (e.g., TCP/IP, file format specifications). These are treated as unprotectable ideas, systems, or methods necessary for functional compatibility.
  3. Algorithms or Solutions (解法 - kaihō): The underlying logic, mathematical formulas, computational methods, or algorithms that a program implements to achieve a result are considered ideas, not protected expression. While the specific code written to implement an algorithm is protectable, the abstract algorithm itself remains free for others to use and implement in their own (differently expressed) code.

This demarcation is vital for promoting innovation and competition in the software industry, ensuring that fundamental programming techniques and functionalities are not monopolized.

Special Statutory Provisions Tailored for Program Works

Recognizing the unique characteristics and modes of creation and use of software, the Japanese Copyright Act includes several provisions specifically addressing program works:

A. Work Made in the Course of Duties (Shokumu Chosaku) – Article 15, Paragraph 2

A significant special rule applies to the authorship of programs created by employees. Under the general shokumu chosaku doctrine (Article 15, Paragraph 1), for an employer to be deemed the author of a work created by an employee, one of the conditions is that the work is made public under the employer's name.

However, Article 15, Paragraph 2 carves out an exception for program works: this requirement of being made public under the employer's name does not apply. This means that if a computer program is created by an employee:

  • At the initiative of the employer,
  • By a person engaged in the business of the employer,
  • In the course of their duties, and
  • There is no contract or work rule stipulating otherwise (i.e., naming the employee as the author),
    then the employer is deemed to be the author and initial copyright owner, even if the program is never "published" in the traditional sense or if it is distributed without any explicit authorship attribution (e.g., as embedded software within a device or used internally within the company). This pragmatic exception acknowledges that many programs are not publicly branded with an author's name in the same way as, for example, a novel or a piece of music.

B. Limitations on the Moral Right to Integrity – Article 20, Paragraph 2, Item (iii)

Authors in Japan possess a strong moral right to integrity (dōitsusei hojiken), which allows them to prevent alterations to their work against their will. However, for computer programs, this right is specifically limited by Article 20, Paragraph 2, Item (iii). This provision permits modifications to a program work if such modifications are:

  • "Necessary for enabling that program work, which is otherwise unusable on a particular computer, to be used on that computer," or
  • "Necessary for making more effective use of that program work on a computer".

This exception allows for practical and often essential alterations such as debugging, patching security vulnerabilities, adapting a program to run on different hardware or operating systems (porting), or optimizing its performance, without these actions constituting an infringement of the original programmer's moral right to integrity. This acknowledges the functional and dynamic nature of software, which often requires ongoing maintenance and adaptation.

C. Private Reproduction and Technological Protection Measures (TPMs) – Article 30(1)(ii)

As with other copyrighted works, the general permission for private reproduction under Article 30 does not apply to programs if the reproduction is made by knowingly circumventing a Technological Protection Measure (TPM). Software is frequently distributed with copy protection, licensing keys, or activation mechanisms that qualify as TPMs. Therefore, users making personal backup copies by bypassing such measures would likely fall outside the private use exception.

D. Deemed Infringement for Business Use of Infringing Copies – Article 113, Paragraph 2

A unique provision, Article 113, Paragraph 2, addresses end-user software piracy in a business context. It stipulates that the act of using a copy of a program work on a computer in the course of business is deemed to be an infringement of copyright if the person using it was aware, at the time of acquiring the authority to use that copy, that such copy was an infringing reproduction (e.g., made without authorization or a pirated copy). This effectively creates liability for businesses that knowingly use unlicensed or pirated software in their operations.

Copyright infringement of software can occur in several ways:

  • Literal Copying: The most straightforward form is the direct, verbatim copying of substantial portions of the program's source code or object code.
  • Non-Literal Copying: More complex are cases involving non-literal copying, where the specific code is not duplicated, but the program's overall structure, sequence, and organization (SSO), or its "look and feel" (though "look and feel" protection is more developed in U.S. jurisprudence than explicitly in Japanese statute), are replicated. Japanese courts, much like their U.S. counterparts (which developed tests like the Abstraction-Filtration-Comparison test in Computer Associates Int'l, Inc. v. Altai, Inc., 982 F.2d 693 (2d Cir. 1992)), would need to carefully dissect the program to distinguish protectable expression from unprotectable ideas, algorithms, standard programming techniques, elements dictated by efficiency, or features constrained by external factors (e.g., hardware compatibility). The focus remains on whether protectable expression has been copied.
  • Reverse Engineering: The legality of reverse engineering (decompiling or disassembling object code to understand its underlying structure and logic) is a nuanced area globally. In Japan, there is no explicit statutory right to reverse engineer for interoperability as found in some other jurisdictions (like the EU Software Directive). However, limited forms of reverse engineering that are strictly necessary to obtain information for creating an interoperable program, and which do not result in the infringing reproduction of protected expression from the original program, might be argued under general copyright principles or specific limitations, but this remains a complex legal question requiring careful case-by-case analysis and often involves assessing whether the acts fall within permissible research or analysis, or if they cross into prohibited reproduction of expressive elements.

Interaction with Other Intellectual Property Rights

Software protection is not solely the domain of copyright. Other IP rights can also play a role:

  • Patent Law: While copyright protects the expressive code, the underlying inventive concepts, algorithms, or software-implemented business methods might be eligible for patent protection in Japan if they meet the criteria of novelty, inventive step, and industrial applicability. It is common for software companies to seek both copyright and patent protection for different aspects of their innovations.
  • Trade Secret Law: Source code, proprietary algorithms, development methodologies, and other confidential information related to software can be protected as trade secrets under Japan's Unfair Competition Prevention Act (不正競争防止法 - Fusei Kyōsō Bōshi-hō), provided that reasonable measures are taken to maintain their secrecy.

While both Japan and the U.S. offer robust copyright protection for computer programs, recognizing them generally as literary works, some differences in approach exist:

  • Statutory Framework: Both protect literal code and non-literal expressive elements to varying degrees. Japan's explicit exclusion of program languages, rules, and algorithms in Article 10(3) provides clear statutory guidance on these points.
  • Originality/Creativity: Japan's "creativity" standard (requiring the author's individuality) versus the U.S. "originality" standard (minimal degree of creativity and independent creation) often lead to similar outcomes for software but stem from slightly different conceptual bases.
  • Work Made for Hire/Shokumu Chosaku: As detailed, Article 15(2) in Japan (waiving the employer-name publication requirement for programs) provides a straightforward path to employer authorship for software developed in-house. U.S. work-made-for-hire rules are also applied to software but involve a distinct analysis, especially for works by independent contractors.
  • Moral Rights: Individual authors of programs in Japan (if Article 15 does not apply to make the employer the author) retain moral rights, although the right to integrity is specifically qualified by Article 20(2)(iii) to permit necessary functional modifications. The U.S. does not provide significant federal moral rights for authors of computer programs.
  • Exceptions and Limitations: While Japan has specific exceptions like Article 20(2)(iii), the U.S. often relies on the more flexible, case-by-case fair use doctrine, which can be applied to certain uses of software, including for purposes like reverse engineering for interoperability (as found in cases like Sega v. Accolade and Atari v. Nintendo), criticism, or education.

Conclusion

Japanese copyright law provides the primary and most significant avenue for protecting the creative expression embodied in computer programs. By treating software as a form of linguistic work, while also incorporating specific provisions that address its unique functional attributes and development contexts—such as the rules for employer authorship and permissible modifications—the law aims to offer a balanced framework. For developers and businesses, understanding the distinction between protected expression (the code) and unprotected elements (algorithms, languages, protocols), as well as the implications of these special provisions, is essential for effectively safeguarding software assets and navigating the legal landscape in Japan.