Quoting Copyrighted Material in Japan: Navigating the "Fair Practice" and "Justifiable Extent" Requirements

The ability to quote from existing works is a cornerstone of academic discourse, critical analysis, news reporting, and the broader cultural dialogue. In Japan, Article 32 of the Copyright Act (著作権法 - Chosakken-hō) provides the legal basis for such quotations (in'yō - 引用), attempting to strike a balance between allowing the use of copyrighted material for legitimate purposes and protecting the rights of copyright holders. However, the interpretation and application of this provision have evolved, moving from a relatively strict set of judicially created tests to a more nuanced, purpose-oriented analysis.

The Statutory Framework: Article 32 of the Japanese Copyright Act

Article 32, Paragraph 1, the primary provision governing quotations, states:
"It shall be permissible to make quotations from a work already made public, provided that their extent is compatible with fair practice and justifiable for the purpose of the quotation, such as news reporting, criticism, or research."
(公表された著作物は、引用して利用することができる。この場合において、その引用は、公正な慣行に合致するものであり、かつ、報道、批評、研究その他の引用の目的上正当な範囲内で行なわれるものでなければならない。)

This provision establishes several key conditions for a quotation to be considered lawful without the copyright holder's permission:

1. The Work Must Be "Already Made Public" (公表された著作物 - kōhyō sareta chosakubutsu): The source material being quoted must have been lawfully published or otherwise made available to the public. Unpublished works generally cannot be quoted under this provision.
2. It Must Be a "Quotation" (引用 - in'yō): While the Act does not explicitly define "quotation," the term is generally understood to mean the act of incorporating, in whole or in part, another person's copyrighted work into one's own work for a specific, recognized purpose. This implies that the quoting party is typically creating their own distinct work or communication into which the quoted material is integrated.
3. Compatibility with "Fair Practice" (公正な慣行に合致するもの - kōsei na kankō ni gatchi suru mono): The manner of quotation must align with what is considered fair and accepted practice in the relevant field or context. This is an inherently flexible standard and often involves considerations such as proper attribution of the source (as also mandated by Article 48 concerning indication of source when relying on copyright exceptions ) and ensuring the quotation is not used in a misleading way.
4. "Justifiable Extent for the Purpose" (目的上正当な範囲内 - mokuteki jō seitō na han'i nai): The amount and substance of the material quoted must be reasonable and proportionate to the legitimate purpose of the quotation, such as news reporting, criticism, research, or other similar objectives. This implies that one cannot quote more of a work than is necessary to achieve the intended purpose. Wholesale reproduction of a work under the guise of quotation would not be permissible.

The Evolution of Judicial Interpretation

For many years, the application of Article 32 was heavily influenced by a set of requirements articulated by the Supreme Court of Japan in a case primarily concerning moral rights.

The Landmark Parody Montage Case (Supreme Court, March 28, 1980)

This influential case involved a photograph that was significantly altered and incorporated into a montage image used on a calendar. The main legal claim was the infringement of the photographer's moral right to integrity (the right to prevent unwanted alterations to one's work). While the primary focus was not on copyright infringement through unlawful quotation per se (as the claim was centered on moral rights), the Supreme Court, in its reasoning, discussed the conditions for permissible quotation under the then-applicable copyright limitation. It laid down two key requirements that became highly influential for interpreting Article 32:

1. Clear Distinction (明瞭区別性 - meiryō kubetsusei): The quoted portion must be clearly distinguishable from the quoting author's own original content. The reader or viewer should be able to easily identify what is borrowed and what is new.
2. Principal-Subordinate Relationship (主従関係 - shujū kankei): The quoting work must be the main or principal part, and the quoted work must be secondary or subordinate to it, both quantitatively and qualitatively. The quotation should serve to support or illustrate the quoting author's own work, not dominate it.

In the Parody Montage Case, the Supreme Court found that the montage did not satisfy the principal-subordinate relationship (the original photo was a central, not subordinate, element of the new image) and thus would not have qualified as a permissible quotation. It also held that the alterations infringed the photographer's right to integrity.

Following this decision, these two judicially crafted requirements—clear distinction and principal-subordinate relationship—became the standard test applied by lower courts in numerous quotation cases for decades.

Criticisms and the Shift Towards Flexibility

Over time, these strict, judge-made requirements faced criticism:

• Lack of Direct Statutory Basis: Critics pointed out that neither "clear distinction" nor "principal-subordinate relationship" are explicitly mentioned in the text of Article 32.
• Overly Rigid: The "clear distinction" rule, in particular, was seen as too rigid, potentially precluding legitimate forms of quotation where the borrowed material is more seamlessly integrated or artistically transformed, such as in sophisticated parodies or pastiches.
• Subjectivity of "Principal-Subordinate": Determining whether the principal-subordinate relationship was met could be highly subjective and difficult to apply consistently, leading to a lack of legal certainty.

These criticisms led to a gradual movement in academic commentary and some judicial decisions towards a more flexible interpretation of Article 32, one that places greater emphasis on the statutory language of "fair practice" and "justifiable extent for the purpose," and involves a more holistic balancing of interests.

The Art Appraisal Certificate Case (Intellectual Property High Court, October 13, 2010)

A significant indicator of this shift was the Intellectual Property High Court (IPHC) decision in what is often referred to as the Art Appraisal Certificate case. The case involved an art appraisal certificate that included a reduced-size color photocopy of the appraised painting on its reverse side. The stated purpose of including the copy was to help prevent forgery of the certificate and, by extension, the artwork itself.

Notably, the IPHC, in finding the use permissible under Article 32, did not explicitly apply the traditional two-pronged test from the Parody Montage Case. Instead, it undertook a more comprehensive, multi-factor assessment, considering:

• The purpose of the use: The court acknowledged that forgery prevention was not a traditional purpose of quotation like criticism or research. However, it found this purpose to be legitimate and, in fact, potentially beneficial to the copyright holder's interests by enhancing the integrity of the art market.
• The manner and extent of use: The photocopy was small, placed on the back of the certificate, and not intended for independent circulation or aesthetic appreciation. It was deemed a reasonable method for the stated purpose.
• The nature of the works involved: The court noted that Article 32 does not require the quoting material (in this case, the certificate itself) to be a copyrightable work.
• The effect on the copyright holder's legitimate interests: The court concluded that this specific use did not unreasonably prejudice the copyright holder's economic or moral interests.

This decision was seen by many as a move towards a more flexible, almost fair-use-like analysis for quotations, focusing on the overall reasonableness and justification of the use rather than a mechanical application of the earlier tests. However, the broad interpretation of "purpose of quotation" in this case also sparked debate. Some expressed concern that if Article 32 could be stretched to cover purposes so far removed from traditional notions of quotation (like criticism or research), it might become an overly expansive exception, making its application unpredictable and potentially undermining copyright protection. A counterargument is that the "purpose of quotation" should indeed remain anchored to its core functions of facilitating commentary, critique, review, academic discussion, and news dissemination, rather than becoming a general-purpose exception for any arguably beneficial use.

Current Requirements for a Valid Quotation

Considering the statutory text and the evolution of case law, the following elements are generally considered essential for a quotation to be lawful under Article 32 today:

1. Source Work is Publicly Available: The work being quoted must have been previously published or otherwise lawfully made accessible to the public.
2. "Fair Practice": This remains a cornerstone. It typically involves:
   • Proper Attribution: While Article 32 itself doesn't explicitly detail attribution, Article 48 of the Copyright Act generally mandates the indication of the source when relying on copyright exceptions, including quotation, in a manner and to an extent deemed reasonable considering the nature of the work and the manner of its exploitation. Failing to provide adequate attribution can weigh against a finding of fair practice. The Tokyo High Court, in a decision on April 11, 2002 (the Zettai Onkan II case), considered the lack of proper translator attribution as a factor contributing to the use not being compatible with fair practice.
   • Contextual Integrity: The quotation should not be used in a way that misrepresents the original work or distorts the author's intended meaning.
3. Justifiable Purpose and Extent:
   • Legitimate Purpose: The quotation must serve a recognized and legitimate purpose, such as news reporting, criticism, research, review, or fostering academic and cultural discussion. While the Art Appraisal Certificate case suggests some flexibility, the core purposes remain central.
   • Proportionality: The amount of the work quoted must be no more than is reasonably necessary to achieve the legitimate purpose. It should not be excessive or substitute for accessing the original work.
4. Impact on Moral Rights: A quotation, even if it meets the criteria of Article 32, must not infringe the original author's moral rights, particularly the right to integrity (Article 20), which protects against unauthorized alterations. However, Article 20, Paragraph 2, Item (iv) provides an exception for modifications deemed "unavoidable for the purpose of exploiting a work" under certain copyright limitations, which can sometimes include modifications necessary for a permissible quotation (e.g., minor edits for formatting, or alterations essential for effective parody or criticism, if the quotation itself is justified). This interplay was evident in the Tokyo District Court decision of October 30, 1998 (the Ketsuekigata to Seikaku case), which involved summary-quotation and acknowledged that alterations might be permissible if they fall under Article 20(2)(iv) within a legitimate Article 32 quotation.

The Special Challenge of Parody

Parody, which often involves quoting or alluding to an existing work to criticize, comment upon, or satirize it (or use it as a vehicle to satirize something else), presents particular challenges under Japan's quotation framework.

The Parody Montage Case, with its strict criteria and finding of moral rights infringement, made it difficult for many forms of parody to qualify as permissible quotations. If a parody requires significant alteration of the original work to achieve its comedic or critical effect, it inherently risks infringing the original author's right to integrity. The Tokyo District Court decision of December 19, 2001 (involving a parody of the book "Who Moved My Cheese?" - Chīzu wa Doko e Kieta? case) found that although the defendant's work was a parody, it copied too much literal expression from the original, exceeding the permissible limits of quotation and infringing copyright.

There is an ongoing debate about whether current Japanese law adequately accommodates parody, which many see as a valuable form of free expression and social commentary. One potential avenue within the existing law is to argue that alterations made for a legitimate parody (that otherwise meets quotation criteria) are "unavoidable modifications" under Article 20(2)(iv). However, not all parodies will neatly fit the traditional "purposes" of quotation (e.g., if the parody uses the original work merely as a well-known vehicle without offering any direct critique or commentary on that original work itself). This has led to discussions about the potential need for specific legislative provisions for parody or the introduction of a more general fair use-type doctrine that could provide greater flexibility.

Comparison with U.S. Fair Use

The approach to quotation in Japan under Article 32 differs markedly from the U.S. doctrine of fair use (17 U.S.C. § 107):

• Nature of the Exception: Article 32 is a specific, enumerated exception with defined conditions. U.S. fair use is a broad, equitable defense that requires a case-by-case balancing of four statutory factors: (1) the purpose and character of the use (including whether it is commercial or for nonprofit educational purposes, and whether it is transformative); (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.
• Flexibility and Predictability: Fair use offers greater flexibility to adapt to new technologies and forms of expression but can offer less predictability than a rule-based system. Japan's system, while potentially more predictable within its established interpretations, can be less adaptable to uses not fitting neatly within the "quotation" paradigm.
• Parody: U.S. law has a well-developed jurisprudence recognizing parody as a form of fair use, particularly when it is transformative and targets the original work for comment or criticism (as affirmed in Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994)). This provides a more direct and often more lenient path for parodists than currently exists under Japanese law.

While the Art Appraisal Certificate case in Japan suggested a move towards a more multi-faceted assessment for quotations, reminiscent of some aspects of a fair use analysis, it remains anchored within the specific statutory framework of Article 32, rather than representing a general, open-ended equitable defense like its U.S. counterpart.

Conclusion

Quoting copyrighted material in Japan is permissible under Article 32 of the Copyright Act, provided the use aligns with "fair practice" and is confined to a "justifiable extent" for recognized purposes such as criticism, research, or news reporting. While the strict "clear distinction" and "principal-subordinate relationship" tests from the Parody Montage Case once dominated, judicial interpretation has shown a trend towards a more flexible, purpose-oriented analysis. Nevertheless, careful adherence to ensuring the quotation is genuinely supportive of a legitimate purpose, is not excessive, and is properly attributed remains crucial for lawful use. For more transformative uses, particularly parody, the legal landscape in Japan continues to present complexities that are not as readily addressed as they might be under broader doctrines like U.S. fair use.