• Information
  • Column
  • Seminar
  • Terms of Use
  • Privacy Policy
  • Sitemap
  • JP
  • Top
  • Welcome
  • Our Operations
  • Lawyer Profile
  • Access
  • Contact
  • Column

    2023.10.19intellectIntellectual Property

    What are Intellectual Property Rights? I explain from the basics.


    The importance of intellectual property rights is increasing year by year, as evidenced by the partial revision of the Trademark Law, Design Law, etc. in June of this year. However, what exactly are intellectual property rights? Some of you may not have a clear image of what exactly intellectual property rights are. Therefore, this report will provide a basic knowledge of intellectual property rights, as well as an easy-to-understand explanation of the contents of copyright, which is one of the most familiar intellectual property rights, and specific examples of copyright infringement.

    1 What are Intellectual Property Rights?

      Some ideas, creations, and other assets created through human intellectual activity have property value and are collectively referred to as "intellectual property.
      Some "intellectual property" is protected by law, such as patents and copyrights, and other rights and interests that are protected by law.
      Such rights protected by law are called "intellectual property rights.

    2 Types of Intellectual Property Rights

      Among intellectual property rights, there are rights that arise through "registration" and rights that arise immediately upon creation without the need for "registration. Rights that arise through "registration" include patent rights, utility model rights, design rights, and trademark rights. Copyrights are rights that do not require "registration" and arise immediately upon creation.
      In this article, we will explain in detail about copyrights, which tend to be widely problematic because the right arises immediately without requiring "registration.
      Please refer to the following column for an explanation of trademarks.
    Trademarks|Utsunomiya Law Office

    3 Copyrights

    1 What is copyright?
       Copyright is a right under the Copyright Act and refers to the right to protect "copyrighted works.
       A "work" is defined as "a creative expression of thought or feeling that falls within the scope of literature, science, art, or music.
       And the Copyright Act lists as examples of works: (1) novels, screenplays, theses, lectures, and other verbal works; (2) music; (3) dances or silent plays; (4) paintings, prints, sculptures, and other fine arts; (5) architectural works; (6) maps or drawings, diagrams, models, and other figures of an academic nature; (7) films; (8) photographs; and (9) programs, (ix) Programs. Buildings and design drawings can also be copyrighted works.
     2 Points to consider when examining copyright

     (1) Copyrightability
       Copyright is a right to protect "copyrighted works" as described above. Therefore, if a work is merely a report of current events, a mere idea, or a common expression that everyone uses, it cannot be considered a "copyrighted work" because creativity is not recognized.
     (2) Who is the author?
       If a creative work is recognized as a "work," the "author," who is the "creator of the work," can claim copyright on the work.
       Therefore, when considering copyright infringement, it is necessary to confirm who the "author" is.
       Since copyrights (excluding moral rights) can be transferred, it is often not easy for a third party to know who the copyright holder is, and it is necessary for the person claiming copyright to prove it.
       Here, the question sometimes arises as to whether the copyright holder of a work created by an employee of a company under work-related instructions is the employee himself/herself or the company.
       In this case, the employee is actually creating the work, but the copyright holder of the completed work is the company (Article 15(1) of the Copyright Law).
       In cases where the actual creator of the work is a subcontractor who is not an employee, or where the company uses illustrations created privately by an employee, the identity of the copyright holder may be disputed, and should be confirmed in advance in a contract or similar document.
     (3) Contents of copyright
       Copyrights can be divided into moral rights and copyright property rights. As mentioned above, copyright property rights can be transferred, but moral rights cannot be transferred.
       Moral rights include the right of publication, which allows authors to decide whether or not to publish their works, the right of attribution, which allows authors to decide whether or not to publish their names as authors, etc., and the right of identity preservation, which allows authors to request that their works not be altered without their permission.
       Copyright property rights also include (1) reproduction rights, (2) performance rights, (3) performance rights, (4) screening rights, (5) public transmission rights, (6) making transmittable, (7) right of public communication, (8) oral communication rights, (9) exhibition rights, (10) distribution rights, (11) transfer rights, (12) lending rights, (13) adaptation rights, and (14) rights of the original author to use derivative works.
       The most common copyright infringement problem is (1) the right of reproduction, but if a new work is created by relying on an existing work, (2) the right of adaptation can also be a problem.
       Therefore, when copyright infringement becomes an issue, it is also necessary to confirm which of the copyrights is being infringed.

     (4) Cases in which copyright is restricted (cases in which anyone can freely use the work)
       Under the Copyright Act, copyright infringement does not occur in certain cases, even if permission to use the work is not obtained.
       For example, reproduction for private use within a limited scope such as for oneself and family members, reproduction in libraries, etc., and citation of another person's work in one's own work for the purpose of introduction, reference, etc.
       However, the scope of the right is interpreted in a limited manner, and it should be noted that reproduction and distribution of illustrations or photographs that are copyrighted works of others within a company is also considered copyright infringement.

     3 What is copyright registration?
       Although we have explained that copyright is a right that does not require "registration," there is, in fact, a system for registering copyright.
       The copyright registration system is not for the acquisition of rights, but for the registration of certain facts as defined by the Copyright Act.
       For example, when a copyrighted work is transferred, the transfer of said copyright can be registered. This gives the legal effect of being able to assert against a third party that a copyright has been assigned to you (to claim your rights).
       Although not widely used in practice, please refer to the following website for more information on the copyright registration system.
       Copyright Registration System | Agency for Cultural Affairs

    4 Specific Examples of Copyright Infringement

    1 Is it OK to use free material on the Internet without permission?
       In conclusion, the fact that a material is marked as copyright free does not mean that there is no problem in using it. As mentioned above, copyright includes a variety of rights, and if it is not clear what rights are free, it cannot be said that there is no copyright infringement problem.
       When a company uses a work for commercial purposes, it is necessary to carefully check the terms and conditions of use before using the work.
     2 If I accidentally create a work that is similar to another person's work, does that constitute copyright infringement?
     In conclusion, it does not constitute copyright infringement. To constitute copyright infringement, the work must have been "relied upon" by others.
        Relying" means "to rely on something." If you create a similar work by chance without any relation to another person's work, you cannot be considered to have "relied" on it, and therefore it is not a copyright infringement.
       The party claiming copyright infringement is required to prove its claim of "reliance" on the work.

     3 If a third party's work (illustration) brought by a customer is printed on a product and sold, does it constitute copyright infringement?
       If you have not obtained permission for use from the author of the work (illustration), it constitutes copyright infringement.
       Therefore, for illustrations brought in by a customer, it is necessary to confirm whether or not they do not infringe on a third party's copyright before determining whether or not the company is permitted to accept the request from the customer.

     4 Generated AI and Copyright
       Generative AI, as typified by ChatGPT and others, is expected to develop and spread rapidly and be used by many companies in the future.
       Will the use of copyrighted works for the development and training of the generative AI itself constitute copyright infringement? Are AI products generated by a generative AI considered copyrighted works? 
       In principle, the use of another person's "copyrighted work" for the development and learning of the AI itself does not constitute copyright infringement (Article 30-4 of the Copyright Act), since the purpose is not to enjoy the ideas or emotions expressed in the copyrighted work. Note that inputting another person's "copyrighted work" as a prompt (a sentence used by a user to instruct the generative AI to do something) does not fall under the category of use for "development and learning" of the generative AI itself, and may constitute copyright infringement.
       However, if a user of the AI is deemed to have "created" something by using the AI as a "tool", it is considered a "copyrighted work" and the AI user is deemed to be the "copyright holder". However, if it is recognized that the user of the generated AI has "created" the work using the generated AI as a "tool," then the work constitutes a "copyrighted work" and the AI user may become the "copyright holder.

    5 What to do if your copyright is infringed

      In the event of copyright infringement, it is possible to exercise civil remedies, such as the right to demand an injunction, compensation for damages, restitution of unjust enrichment, and restoration of reputation.
      In addition, criminal penalties (imprisonment for up to 10 years or a fine of up to 10 million yen) may also be imposed in cases of copyright infringement. If an employee of a corporation commits copyright infringement, the corporation itself may also be subject to criminal penalties.
      If you are in doubt about the use of a copyrighted work, or if your copyright has been infringed, or if it is claimed that your copyright has been infringed, you may need to consider taking individual action, in which case, please contact our office.