Quoting Copyrighted Works in Japan: What are the Requirements for Lawful Quotation?

Quotation is an essential practice in academic writing, journalism, criticism, research, and many other forms of communication. It allows creators to refer to, comment on, or build upon existing works. However, since quotation involves using portions of copyrighted material, it must be done within legally defined boundaries to avoid infringement. Article 32, Paragraph 1 of the Japanese Copyright Act (著作権法 - Chosakukenhō) permits the quotation of published works under specific conditions, aiming to strike a balance between protecting copyright holders and ensuring freedom of expression and the advancement of knowledge.

The Statutory Basis: Article 32, Paragraph 1

Article 32(1) of the Copyright Act provides the foundation for permissible quotation. It states that a published copyrighted work may be quoted, provided two main conditions are met:

1. The quotation must be "compatible with fair practice" (公正な慣行に合致すること - kōseina kankō ni gatchi suru koto).
2. The quotation must be "within a justifiable extent for the purpose of the quotation, such as for news reporting, critique, or research" (報道、批評、研究その他の引用の目的上正当な範囲内であること - hōdō, hihyō, kenkyū sonota no in'yō no mokuteki-jō seitōna han'i nai de aru koto).

This provision allows for the "utilization" of the quoted material, which can encompass not only reproduction but also other acts like public recitation, performance, or broadcasting, as part of the new work in which the quotation is embedded.

Important Ancillary Rules:

• Modification of Quoted Material: When quoting, the work must generally be used as is. Article 47-6, Paragraph 1, Item 3 of the Copyright Act clarifies that for uses permitted under Article 32 (quotation), only translation is generally allowed as a form of modification. Other alterations like musical arrangements, transformations, or dramatizations are typically not covered by the quotation privilege. However, a notable Tokyo District Court decision in the “Ketsuekigata to Seikaku” no Shakaishi (Social History of "Blood Type and Personality") case (October 30, 1998) suggested that a faithful summary (which is a form of adaptation) of another's literary work could be permissible as a quotation if it accurately reflects the original's intent and other quotation requirements are met, especially when direct, fragmented quotation might be less clear.
• Indication of Source (Article 48): It is mandatory to indicate the source of the quoted material in a manner and to an extent deemed reasonable according to the circumstances of the quotation. Failure to do so can lead to penalties (Article 122) and, as suggested by the Tokyo High Court in the Zettai Onkan (Absolute Pitch) Case (April 11, 2002), may also render the quotation incompatible with "fair practice" and therefore infringing.

Judicially Established Requirements for Lawful Quotation

While Article 32(1) lays down the statutory conditions, Japanese courts have developed a set of more concrete requirements, largely stemming from the influential Supreme Court decision in the Parody Montage Case (March 28, 1980). This case, though dealing with a parody under the old Copyright Act's "excerpt quotation" provision, established criteria that have profoundly shaped the interpretation of lawful quotation under the current Act. These are primarily:

1. Clear Distinction (明瞭区分性 - Meiryō Kubunsei)

The quoted portion must be clearly and unambiguously distinguishable from the quoting party's own original work. This means the audience should be able to readily identify which parts are borrowed and which parts belong to the author of the new work. Common methods to achieve this include using quotation marks, block indentation, different fonts, or introductory phrases like "As X states...".

The rationale is straightforward: without such distinction, the use risks becoming plagiarism, misleading the audience about the authorship of the quoted material. If a work incorporates another's text without clear demarcation, simply acknowledging the source vaguely at the beginning of the work, for example, would likely not suffice, as seen in the Tokyo District Court's Bungo no Ishiburo (Bungo's Stone Baths) Case (April 28, 1986).

2. Principal-Subordinate Relationship (主従関係 - Shujū Kankei)

The relationship between the quoting work and the quoted material must be one where the quoting party's own contribution is "principal" (shu 主 – main or primary), and the quoted material is "subordinate" (jū 従 – secondary or auxiliary). This requirement has both quantitative and qualitative aspects:

• Quantitatively: Generally, the amount of quoted material should be less, often significantly less, than the original content created by the quoting author. While there's no strict percentage rule, extensive copying that overshadows the new work is unlikely to be considered subordinate.
• Qualitatively: More importantly, the quoted material must serve a genuine auxiliary purpose to the quoting author's own work. It should be used to illustrate, support, explain, critique, or refer to a point being made in the principal work. The quoting work must have its own independent intellectual or creative value and should not primarily exist as a vehicle to merely present or re-publish the quoted material.

The Tokyo High Court decision in the Fujita Tsuguharu Art Collection Case (October 17, 1985) is a classic example. An art book featured extensive reproductions of Fujita's paintings alongside critical text. The court found that the paintings were presented in such a way (e.g., full-page or half-page reproductions) that they became objects of aesthetic appreciation in themselves, rather than merely subordinate illustrations for the text. Thus, the subordination requirement was not met.

Reconciling Judicial Requirements with Statutory Language

There has been considerable academic discussion about precisely how these two judicially emphasized requirements—clear distinction and principal-subordinate relationship—relate to the statutory conditions of "fair practice" and "justifiable extent for the purpose." Some scholars view them as inherent prerequisites for an act to even qualify as a "quotation" by definition, while others see them as concrete manifestations of what constitutes "fair practice" or falls within a "justifiable extent."

One perspective suggests that "clear distinction" and "principal-subordinate relationship" should first be assessed as objective, almost formal, prerequisites for an act to be considered a quotation at all. If these are met, then a further normative evaluation based on "fair practice" and "justifiable extent for the purpose" would be applied. This approach was arguably seen in the IP High Court decision in Okinawa Urizun no Ame (Okinawa's Early Summer Rain) (August 23, 2018), which first checked for clear demarcation before delving into the other normative conditions.

"Compatible with Fair Practice" (公正な慣行に合致すること - Kōseina Kankō ni Gatchi Suru Koto)

This is a flexible, normative standard that allows courts to consider the context and evolving norms of acceptable use. What constitutes "fair practice" can vary depending on:

• The type of works involved (e.g., academic text, musical composition, visual art).
• The customs and expectations within a particular field or industry (though mere custom is not automatically "fair" if it conflicts with copyright principles).
• The overall balance between the copyright holder's interests and the public's interest in accessing and using information.

Given its open-ended nature, some commentators have suggested that in interpreting "fair practice," it might be permissible to draw insights from the factors considered in U.S. fair use analysis (such as the purpose and character of the use, the nature of the copyrighted work, the amount and substantiality of the portion used, and the effect of the use upon the potential market for or value of the copyrighted work), not as a direct application of foreign law, but as a tool for understanding what might be considered "fair" in a given context. Failure to adhere to expected norms, such as proper source attribution, can lead a court to find a quotation incompatible with fair practice, as noted in the Zettai Onkan case.

"Within a Justifiable Extent for the Purpose of the Quotation" (引用の目的上正当な範囲内 - In'yō no Mokuteki-jō Seitōna Han'i Nai)

This condition has two interconnected components: the purpose of the quotation and the extent of the quotation.

• Justifiable Purpose: Article 32(1) lists "news reporting, critique, or research" as examples of purposes for quotation, followed by "and other similar purposes." This implies that the quotation must generally serve an illustrative, referential, analytical, or critical function in relation to the quoting author's own intellectual or creative endeavor. Using another's work simply to fill space, make one's own work more attractive without genuine engagement with the quoted material, or to avoid the effort of original creation is typically not considered a justifiable purpose. For example, the Tokyo District Court in the Nangoku Bungaku Note (Southern Country Literature Notes) Case (May 31, 2004) found that incorporating another author's short poem into a novel merely to evoke a character's emotions, rather than for critical analysis or research concerning the poem itself, did not meet the justifiable purpose requirement.
• Justifiable Extent: Even if the purpose is legitimate, the amount and substantiality of the quoted material must be no more than is necessary to achieve that purpose. This is a proportionality test. Quoting extensively beyond what is required for the stated purpose can render the quotation unlawful. While the Tokyo District Court in the Datsu Gōmanism Sengen (Escaping Gōmanism Declaration) Case (August 31, 1999) suggested that an author can quote to the extent they deem necessary, this is likely subject to an objective assessment by the courts of what is truly "justifiable" in the circumstances.

It is also generally understood that the work doing the quoting must itself be a work that involves original expression by the quoting author. Merely assembling quotations from others without substantial original contribution would likely be treated as a compilation, requiring assessment under the rules for compilation works (Article 12), rather than as a series of lawful quotations. The Tokyo District Court in the Barnes Collection Case (February 20, 1998) touched upon this, suggesting that the quoting work should itself possess the characteristics of a copyrighted work.

Quotation and Parody

Japanese copyright law contains no specific provision or exception for parody. Applying the standard quotation rules to parody is highly problematic. Parodies often involve taking substantial or highly recognizable elements of an original work and transforming them for humorous or critical effect, which can conflict with:

• The principal-subordinate relationship (a parody might give great prominence to the original).
• The requirement that the quotation serves a purpose like critique of the quoted work itself (parodies often use an existing work to comment on something else entirely).
• The general restriction against alteration beyond translation when quoting (parodies inherently involve alteration).
• The author's moral right of integrity (Article 20), as parodic transformation can easily be seen as an alteration against the original author's will or as prejudicial to their honor or reputation.

The Supreme Court's Parody Montage Case, which was itself about a parody, established the strict quotation criteria that make it difficult for most parodies to qualify as lawful quotations. While U.S. law has recognized some parodies as fair use (e.g., the Supreme Court's decision in Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994)), achieving a similar outcome under Japan's Article 32 is generally challenging.

Some legal thought explores whether certain transformative uses that might be labeled "parody" could be considered so substantially new that they constitute entirely original works, or whether a very flexible interpretation of "fair practice" might, in extremely limited circumstances, accommodate some forms of true artistic parody that critique or comment on the original work itself. The Tokyo District Court's provisional disposition in the Cheese wa Doko e Kieta? (Who Moved My Cheese? Parody) Case (December 19, 2001) acknowledged a book as a parody intended to critique the original but found that it overstepped permissible bounds by copying too much concrete description from the original.

Conclusion

Lawful quotation under Article 32 of the Japanese Copyright Act is a vital tool for expression and scholarship, but it comes with stringent conditions. Users must ensure that any quotation is clearly distinguished from their own work, maintains a principal-subordinate relationship, conforms to fair practice (including mandatory source attribution), and is limited to a justifiable extent for a recognized purpose such as news reporting, critique, or research. The absence of a broad "fair use" doctrine means that adherence to these specific criteria is paramount, and creators looking to incorporate existing works into their own must navigate these rules carefully.