Intellectual Property Law

Japan's Protection of Computer Programs

By IBLS Editor

Even though copyright laws were not developed envisioning protection of computer programs, the world's tendency to provide copyright protection to computer programs is growing.  According to the Berne Convention for the Protection of Literary and Artistic works and the Universal Copyright Convention, once a country provides copyrights protection to domestically-developed computer programs, it must afford the same protection to computer programs developed by foreign persons from countries signatories to these international agreements.   This article presents an overview of Japan's protection of computer programs.

Legal Framework
Japan's Copyright Act No. 48 of 1970 ("JCA") constitutes the legal framework of copyrights in Japan.  JCA Chapter II, art. 10, provides examples of copyrighted works, and numeral (ix) lists 'computer programs' as example of protected works in Japan. 

Definition of Computer Program
JCA was amended in 1985 to include provisions relating to protection of computer programs. Japan Copyright Act, art. 2, defines 'computer programs ' as a combination of instructions to a computer with the purpose of obtaining some specific result when operating the computer.  Interpretations of this definition of computer programs under Japan's law suggest that computer programs are protected no matter their form; be them in the form of disk, CD, magnetic tape, etc.  Additionally, this broad definition of computer programs under the JCA is deemed to include both operating systems and applications.  Lastly, computer programs protected under Japan copyright law may take the form of 'source code' (alpha-numeric language) or 'object code' (machine-readable format).  

Corporate Authors
Japan's Copyright Act authorizes corporate authorship of computer programs provided that the work is made under the initiative of the corporation or juridical person, the work is made by a person working for the corporation or juridical person, and the work is made public under the name of the corporation or juridical person.

Authors' Right to Reproduce and Adapt
Subsection 3 of JCA lists the types of rights comprising a copyright in Japan.  Among all, the exclusive right to reproduce and adapt are the must important for authors of computer programs. Art. 21 says the author shall have the exclusive right to reproduce its work; and Art. 27 mandates that the author shall have the exclusive right to adapt its work.   Yet, in the field of computer programs strict application of these copyrights is not feasible because users may need to reproduce the computer programs for back-up purposes or to adapt them to their computer systems.  Thus, JCA has established some logical limitations on copyrights under subsection 5. 

Subsection 5 of JCA, Art. 47-2, establishes limitations on the right of reproduction and adaptation of computer programs.  "The owner of a reproduction of a computer program work may make reproductions or adaptations including reproductions of derivative works created by means of such adaptation of said work if and to the extent deemed necessary for his own exploitation of said work on a computer."   It is clear under the JCA that these reproductions are for owners' private use.  Commercial reproductions of private copies are not covered by these limitations on copyrights and constitute infringement under Japan Copyright laws. 

In accord with copyright laws in other jurisdictions, JCA states that when a business uses a copy of a program work and that copy is an infringing copy, the business will incur in infringement of the author's copyrights as well.  Business may defend by claiming that they were not aware the program work copy was a copy infringing upon the author's rights.  
 

Full post as published by IBLS Internet Law Blog on May 20, 2008 (boomark / email).