Understanding Derivative Works and Adaptations Under Japanese Copyright Law: What are the Original Author's Rights?

The creation of new works from existing ones—translations of novels, musical arrangements, film adaptations, and more—is a cornerstone of cultural development. Japanese copyright law addresses these creations under the concepts of "secondary works" (二次的著作物 - niji-teki chosakubutsu) and the author's "right of adaptation" (翻案権 - hon'an-ken). Understanding this framework is crucial for both creators of original works and those who wish to adapt them.

What is a Secondary Work?

Under Article 2, Paragraph 1, Item 11 of the Japanese Copyright Act, a secondary work is defined as "a work created by translating, arranging musically, transforming, dramatizing, cinematizing, or otherwise adapting a pre-existing work." The pre-existing work is referred to as the "original work" (原著作物 - gen-chosakubutsu).

The creation of such secondary works directly implicates the rights of the author of the original work.

The Right of Adaptation (翻案権 - Hon'an-ken)

Article 27 of the Copyright Act grants the author of an original work the exclusive right to translate, arrange musically, transform, dramatize, cinematize, or otherwise adapt their work. This right of adaptation is a key component of the author's economic rights. Therefore, creating a secondary work based on an original work without the permission of the original author generally constitutes an infringement of their right of adaptation.

Distinguishing Adaptation from Reproduction (複製 - Fukusei)

A critical distinction must be made between an "adaptation" that results in a secondary work and a mere "reproduction" of the original work.

• Reproduction (Article 21; defined in Article 2(1)(15)): This refers to the tangible recreation of a work through methods such as printing, photography, copying, sound recording, or visual recording. Importantly, under Japanese law, reproduction can include acts that involve some level of modification, correction, addition, or change to the original work. However, for such an act to remain a reproduction (and not an adaptation), two conditions are generally key:
  1. No new creativity is added during the modification process.
  2. The essential expressive features of the original work are maintained, and an ordinary person encountering the modified version can still directly perceive these original features.
     The current definition of reproduction is narrower than under the old Japanese Copyright Act (Meiji 32 Law No. 39), which more broadly encompassed acts now considered adaptations. The Supreme Court decision in the One Rainy Night in Tokyo case (September 7, 1978), while interpreting the old law, defined reproduction as "reproducing a work by relying on it and in a manner sufficient to make its content and form perceivable." The elements of "reliance" and "identity of the work" remain pertinent.
• Adaptation (Article 27): This involves taking an existing work and, while preserving its essential expressive features, modifying it by adding new creative elements to express new thoughts or sentiments. The result is a distinct, new work—a "secondary work"—from which the essential expressive features of the original work can still be directly perceived.

The Supreme Court decision in the Esashi Oiwake case (June 28, 2001) provided a pivotal definition for the adaptation of a literary work:
"Relying on an existing work, and while maintaining the identity of its essential expressive features, adding modifications, additions, or changes to the concrete expression, thereby creatively expressing new thoughts or sentiments, creating another work from which one who encounters it can directly perceive the essential expressive features of the existing work."

This definition intrinsically links the act of adaptation to the creation of a secondary work, implying that the addition of new creativity by the adapter is a hallmark of adaptation. If substantial changes are made but they lack new creativity, the result might be an infringing reproduction rather than a secondary work.

Creation and Characteristics of a Secondary Work

Several elements are essential for a work to be considered a secondary work:

1. Reliance on the Original Work: The creator of the secondary work must have based their work on, or drawn from, the original work.
2. Preservation of Essential Expressive Features of the Original: The core, creative expression of the original work must remain identifiable within the secondary work. If the original is entirely transformed beyond recognition, the new work might be considered wholly original and independent, though the act of transformation itself, if unauthorized, could still infringe the adaptation right.
3. Addition of New Creativity: This is what distinguishes a secondary work from a mere reproduction. The adapter must contribute their own creative expression, imbuing the new work with new thoughts or sentiments beyond those solely attributable to the original.

When determining if an adaptation has occurred, especially in infringement cases, courts may look at whether the defendant's work allows an ordinary observer to directly perceive the essential creative characteristics of the plaintiff's original work. Copying only non-creative elements or ideas from an original work does not constitute an infringement of the adaptation right.

Rights in Secondary Works

A secondary work, by virtue of its own creative contributions, is granted its own copyright protection, independent of the copyright in the original work (Article 11). This means the author of the secondary work has exclusive rights over their creative additions.

However, the rights of the original author are not extinguished. Article 28 of the Copyright Act is crucial here: "With respect to the exploitation of a secondary work, the author of the original work shall possess exclusive rights of the same types as those possessed by the author of the secondary work under the provisions of this Chapter [Chapter 2, Section 3, Subsection 2: Rights Comprised in Copyright]."

This provision means that if a third party wishes to exploit the secondary work (e.g., make copies of a film adaptation), they generally need permission from both the copyright holder of the secondary work (e.g., the filmmaker or film production company) and the copyright holder of the original work (e.g., the novelist).

The interpretation of Article 28 has been subject to significant judicial scrutiny, notably in the Candy Candy case (Supreme Court, October 25, 2001). In this case, involving a manga series (secondary work) based on an original story (original work), the Supreme Court affirmed that the original author retains rights concerning the exploitation of the secondary work. One line of reasoning, discussed at the High Court level, was the difficulty of cleanly separating the original author's contributions from the secondary author's new creative additions within the fabric of the secondary work. While the Supreme Court did not explicitly adopt this "difficulty of separation" rationale as its primary basis, it concluded that Article 28 grants the original author rights equivalent to those of the secondary author concerning the exploitation of the entire secondary work.

Legal scholarship has debated the precise scope of the original author's rights under Article 28. A key point of discussion is whether the original author's rights extend to genuinely new and independent creative contributions made solely by the secondary author. If Article 28 is interpreted to give the original author rights over every part of the secondary work, regardless of its origin, it could diminish the secondary author's own copyright.
A more nuanced reading of "rights of the same types" in Article 28 suggests that the original author gains the ability to control forms of exploitation of the secondary work that correspond to the types of rights a copyright holder normally enjoys (e.g., if the secondary work is a film, the original novelist gains rights analogous to a filmmaker's distribution or public transmission rights with respect to that film adaptation). This does not necessarily mean the original author gains co-ownership of the new creative elements introduced by the secondary author. The Supreme Court's decision in the Popeye Tie case (July 17, 1997) had previously indicated that newly added creative parts in a secondary work can be distinguished from the original material.

Thus, while the original author's rights are robust concerning the exploitation of secondary works derived from their original, the exact reach of these rights, particularly over portions representing new creativity by the secondary author, continues to be an area of careful legal consideration. The principle remains that exploitation of the secondary work often requires a dual clearance of rights.

Relationship Between Original and Secondary Work

• The creation of a secondary work does not diminish or otherwise affect the rights in the original work (Article 11).
• The term of protection for the original work and the secondary work are independent. If the copyright in the original work expires, the rights of the original author concerning the secondary work (under Article 28) also cease. However, the copyright in the secondary work itself, based on its own original creative contributions, continues for its own full term. (An exception exists for cinematographic works, where the rights in certain pre-existing works used in the film may expire with the film's copyright under Article 54(2)).

Derivative Works of a Derivative Work (e.g., Tertiary Works)

Japanese copyright law does not explicitly define or use terms like "tertiary work" or "quaternary work." Instead, the analysis focuses on the chain of derivation back to an "original work." If a work (Work C) is created by adapting a secondary work (Work B, which itself adapted Work A), Work C can still be considered a secondary work of the initial original (Work A) as long as Work C retains directly perceptible essential expressive features of Work A. The number of intermediate steps does not change this fundamental analysis. However, if the chain of adaptation becomes so attenuated that the essential expressive features of the initial original work are no longer directly perceptible in the latest work, then the latest work would cease to be a secondary work of that remote original.

In an infringement lawsuit, if an original author claims their rights in Work A have been infringed by Work C, they need to show that Work C relied on Work A (directly or indirectly through Work B) and that Work C embodies the creative expression of Work A. It is not typically necessary to meticulously trace and label each step as "secondary," "tertiary," etc., so long as the link of reliance and expressive similarity to the plaintiff's original work can be established.

Asserting Rights and Proving Infringement

When an original author sues for infringement of their adaptation right, they must prove:

1. They hold copyright in the original work (or the specific part alleged to have been adapted).
2. The defendant's work was based on (relied upon) their original work.
3. The defendant's work incorporates the creative expression of the original work in a modified form that still allows the original's essential expressive features to be perceived. This involves showing that the copied elements are indeed creative expressions, not mere ideas or uncopyrightable facts.

The defendant may counter by arguing that the elements taken are not creative, that their work was independently created, that any similarity pertains only to unprotectable ideas, or that their work is so transformative it no longer constitutes an adaptation of the original.

Conclusion

The concepts of secondary works and the right of adaptation are vital for regulating the dynamic process of cultural creation and re-creation. Japanese copyright law seeks to balance the original author's right to control how their work is transformed and exploited with the ability of subsequent creators to build upon existing works by adding their own distinct creativity. The rights in a secondary work are shared, in effect, between the original author and the secondary author, with both typically needing to consent to its further exploitation. This framework, while complex, underscores the value placed on both initial creation and the innovative potential of adaptive works.