In 1988, Professor Karjala of Arizona State University and I wrote a long article titled “Fundamental Concepts in Japanese and American Copyright Law”. Therein we took up similar cases in both countries and did a comparative study.  We concluded that although there are some differences in reasoning, the courts in both countries reach more or less the same results.  Fifteen years have passed, and we found the same conclusions in many cases, but different conclusions in some cases.

Today, I would like to introduce several court decisions which, I believe, illustrate the similarities and differences of the two copyright law systems.

This is a chart which shows the major differences in both statutes.

Among copyrightablity requirements, the United States uses the concept of “originality” which means “independent creation” or “not copying” plus minimal degree of creativity. In Japan, we only use a concept which corresponds to creativity.

The U.S. law has a provision which clearly sets forth a so-called "Idea/Expression dichotomy" in Article §102(b). In contrast, the Japanese law does not have such provision, although sometimes the courts use the same kind of principle. For computer programs specifically, we have a special provision as I will explain later in detail.

Even after the United States became a signatory to the Berne Convention, the U.S. Copyright Act had no moral right provision except for Article 106A.  The Japanese Act has moral right provisions in Articles 18 to 20, which are the right of making the work public, right of determining the indication of the author’s name, and the right of preserving the integrity of the work.

Next, the Japanese Act does have a set of detailed provisions specifying fair use in particular circumstances such as reproduction for private use or reproduction in libraries or quotations, but it has never contained a general fair use defense such as in Article 107 of the U.S. Copyright Act. This has caused a lot of difficulties in dealing with copyright cases, as I will explain later.

The Japanese Act does not have statutory damages similar to Article 504 (c)(2) of the U.S. Code.  This has caused a remarkable difference in the amount of damages, as I will also explain later.

I believe I do not have to explain much about the Feist v. Rural case, which denied originality in the white pages telephone directory. The U.S. Supreme Court found that Rural’s white pages directory lacked the modicum of creativity necessary to transform mere selection into copyrightable expression. The Japanese law has never adopted a originality requirement in the sense of not copying, but we have long used the creativity concept alone.

Then, what is the level of creativity? This issue was dealt with in yellow pages directory context in Asaban case. The Defendant argued that a higher level of creativity is required for compilations than for other types of works. The court denied this argument, by saying compilations can be protected unless its expression is not so commonplace as everyone would do the same. The Tokyo High Court, however, denied infringement by the Defendant, by saying that if the level of creativity is low, as in the case at issue, the scope of protection becomes narrower and only exact copying is prohibited.

We may say that both courts required a low level of creativity for copyright protection. I still feel that the level of creativity required in Japan may be a little higher than in the States.

Even in Japan, there have been a few cases where the courts adopted “the sweat of the brow” type theory.  This Asaban Court never used a word implying this. I think it is good in the copyright context, but we may need to seek other ways of protecting a mass of data in digital form from copying as is accomplished by the EU database directive’s sui generis right.

Thus, the U.S. Copyright Act stipulates that copyright protection shall not extend to the idea of a work. The Computer Associates v. Altai decision applied this to the scope of protection in computer programs. I personally feel this filtering test is too technical to easily be applied to many individual cases, but eliminating unprotectable elements is a workable tool. Such as (a) elements dictated by efficiency, (b)elements dictated by external factors (such as technical specifications of the computer on which a particular program is intended to run; compatibility requirements of other programs with which a program is designed to operate in conjunction; computer manufacturers’ design standards; demands of the industry being served; widely accepted programming practices within the computer industry); and (c) elements taken from the Public Domain.

In Japan, we have Article 10-3, which stipulates as follows:

We may say that this provision works like §102 (b) of the U.S.  Copyright Code in the field of computer programs. There have been two cases. One is the System Science case in 1989. The Tokyo High Court rejected a part of the Plaintiff's allegation of infringement by using the algorithm exception. The Court said that among programs the parts dictated by hardware and standard or usual elements are not creative and therefore unprotectable. The Court went on to say that “because the flow of processing itself in a program is an “algorithm”, or in other words a solution as provided for in Article 10-3(3), and is a portion which does not receive protection as a copyrightable work.” We may say that this decision adopted a similar approach as was taken by the CA v. Altai Court.

There is one more court decision that applied Article 10-3.  In ICM v. Met's, the Tokyo District Court used in one part the “language” exception to restrict the scope of protection.

We do not have many court decisions in this field except when it comes to cases involving videogame programs. We have no such precedent as that created in Lotus v. Borland, where user-interfaces were at issue.

As shown in the two cases, which I am going to take up, these differences may cause significant differences in outcomes.

In Cambell and Acuff-Rose, the U.S. Supreme Court took a very free approach to the rap version of a song called “Oh! Pretty Woman”.  Moral rights like such as the right to preserve the integrity was not discussed from the beginning, of course. The Court properly admitted a parody as one type of criticism and the use in the particular case is fair one. Let me read one part of the decision for comparison with the Japanese case. The Cambell Court says that parody needs to mimic an original to make its point, and so has some claim to use the creation of its victim’s imagination.

The Japanese Supreme Court decision also dealt with parody in the field of photograph. This is a photo taken by Plaintiff. The author flew to the Alps and hired six professional skiers and let them sky in this way and took this photo. Although this copy is not clear, you can see six tracks of skiers. Defendant trimmed some part of the photo and added a big car tier on the top of the hill. It looks as if the skiers are running away from the big tire. I do not know if this parody was successful, but I agree with the Cambell opinion that “Whether parody is in good taste or bad does not and should not matter to fair use”. The Tokyo High Court admitted that Defendant’s montage is permissible as a parody by saying it is a justifiable “quotation”. The Supreme Court reversed and remanded. The Supreme Court reasoned that “To use another person’s work without his permission is legal only when one uses it in such a manner as not to cause the essential characteristics in the expressive form of the work to be perceived directly as such. In this case, however, essential characteristics can be perceived , so the use is unlawful.” Thus the Court found that Defendant’s montage infringes Plaintiff’s moral right to preserve the integrity of the work.  As the Cambell Court said, parody needs to mimic original, at least to the extent the audience can perceive the original expression. Therefore, if one has to make the original expression unperceivable in order to avoid infringement, there is no way to create parody as a logical consequence. The Chief Justice realized this dilemma and wrote a supplemental opinion saying that “to avoid infringement, for example, we may conceive a way that Defendant should take a photo by himself which mimics the expressive form of the Plaintiff’s photo to the extent necessary for expressing parody and adding photo montage method to his own photo.” I cannot believe there is any parodist in the world who would fly to the Alps just to make such a montage.

This decision shows one flaw or defect in the Japanese Copyright Act, in that it lacks a general fair use provision. The Japanese Court cannot enlarge the scope of the “quotation” provision to allow for the existence of parody, since parody is something different from “quotation” set forth in Article 32.

The lack of fair use provision makes the interpretation of the Act very rigid and sometimes may lead to unfair results.

My last comment is on the cases that may show practically the most striking differences in both copyright systems. The Plaintiff in both cases is Nihon Keizai Shimbun, which is one of the most famous newspaper publishers in Japan. In both cases, Defendant engaged in the business of making abstracts of certain newspaper articles in English and selling them.

The Tokyo District Court found infringement of eleven articles and ordered the Defendant to pay damages. As previously explained the Japanese Copyright Act does not have a statutory damages provision as does the U.S. Copyright Act. The Court determined damages based on usual royalty of ¥900 per one article. Then the total amount was ¥9,900, which is about $80 at the current exchange rate.

Some of the employees of the Defendant in the Tokyo case moved to the United States and restarted the same business. The Second Circuit Court found the infringement just as the Tokyo District Court did, and ordered the Defendant to pay damages, but under the statutory damages rule and come up with a different amount. The Second Circuit Court determined the damages per one article to be $10,000 and multiplied it by 20 (the number of articles involved), which amounts to $200,000. In addition, the Court granted another $200,000 as attorneys’ fees.  The number of articles at issue was not the same. Eleven in Tokyo and twenty in the Second Circuit. So, I calculated the total amount to be ordered if twenty articles were at issue in Tokyo. It would be about $145.50 making the actual amount of damages granted in the U.S. 2750 times that granted by the Tokyo District Court. 

It seems to me that the Japanese amount may be too small, but the American amount may be too large. In any case, we may not claim with confidence that the two countries have similar copyright law systems.

Thank you very much for your kind attention.