Explanation of the Creation of Rights and the Duration of Protection under Japanese Copyright Law

In the intellectual property portfolio of a company, copyright is a fundamental right that protects a wide range of assets, including software, marketing materials, research and development reports, and designs. For companies operating globally, accurately understanding the personalityistics of copyright systems in various countries, especially the Japanese Copyright System, is extremely important from the perspectives of asset management and risk avoidance. While the Japanese Copyright System shares a common foundation with many systems adopted around the world, it has unique principles regarding the mechanisms of right acquisition and the calculation of protection periods. Under Japanese Copyright Law, a principle known as ‘formality-free system’ is adopted, which does not require any registration or application with administrative agencies for the rights to arise. This means that legal protection is automatically granted the moment the creative activity is completed. However, this automatic protection does not apply to all outcomes. To be recognized as a ‘work’ eligible for legal protection, it must meet the requirement of ‘originality,’ which serves as an important criterion to distinguish between mere collections of facts or data and the results of intellectual creative activities. Understanding the duration of protection, that is, the protection period, is equally important. Japanese Copyright Law adopts two main principles for calculating the protection period: one based on the author’s death and another exceptional principle based on the time of publication of the work. Which of these principles applies depends on the nature of the work and the manner in which the author is credited. These complex rules provide a predictable legal framework for maximizing the value of a company’s intangible assets and managing their lifecycle. This article provides a detailed explanation of the requirements for the creation of rights under Japanese Copyright Law, the specific methods for calculating the protection period, and the process leading to their extinction, based on statutes and case law.

Copyright Creation: Formality-Free Principle and the Requirement of Creativity Under Japanese Law

Under Japanese copyright law, copyright automatically arises when certain requirements are met. Understanding this mechanism is the first step in properly managing your company’s rights and avoiding infringement of others’ rights. Here, we will explain the two core elements of rights creation: the “formality-free principle” and “creativity.”

Formality-Free Principle

One of the most fundamental principles adopted by the Japanese copyright system is the “formality-free principle.” This means that no formal procedure is required for the creation and possession of copyright. Specifically, unlike patent or trademark rights that require application and registration with government agencies, copyright is automatically granted to the author the moment a work is created. This principle is clearly stipulated in Article 17, Paragraph 2 of the Japanese Copyright Law, stating that “no formal procedure is required for the enjoyment of copyright and moral rights of the author.”

Thanks to this formality-free principle, for example, a report created by a company employee, graphics produced by a designer, or source code written by a programmer are immediately protected by copyright law upon completion. The display of the © symbol (circled C) often seen on websites and publications is not a requirement for the creation of rights. The © symbol is a conventional indication of the existence of copyright, and its presence or absence does not affect the validity of the rights.

This principle simplifies the process of acquiring rights and is a significant advantage in promoting creative activities. However, it also means that the responsibility to prove the existence and ownership of rights lies with the rights holder. In the event of a dispute, it becomes necessary to provide objective evidence of when, who, and what was created, making practical measures such as recording the date of creation and maintaining contracts important.

“Creativity” as a Prerequisite for Works

While copyright arises automatically and without formality, its protection is limited to what legally qualifies as a “work.” Article 2, Paragraph 1, Item 1 of the Japanese Copyright Law defines a work as “something that creatively expresses thoughts or feelings and belongs to the fields of literature, science, art, or music.” Within this definition, the most important requirement in practice is “creativity.”

Creativity means that some individuality of the author is expressed, and it does not necessarily require high artistic quality, novelty, or originality. If the result of the creator’s intellectual activity is reflected, and it is not a mere imitation of someone else’s work, creativity tends to be recognized. Conversely, expressions that would be the same regardless of who created them or mere facts or data themselves are not recognized as creative and are not protected as works.

A representative legal case that focused on the presence of creativity is the “NTT Town Page Database Case” (Tokyo District Court, May 16, 1997). In this case, the work status of the “Town Page,” a telephone directory database classified by profession, was questioned. The court ruled that, unlike the “Hello Page,” which simply arranges individual and corporate names in alphabetical order, the classification system of professions in the “Town Page” involved the creator’s ingenuity in the selection and arrangement of information, and creativity was recognized. Specifically, the unique classification system designed for search convenience was evaluated as a creative expression that went beyond a mere collection of data.

This case provides important implications for how companies should consider their information assets. Whether databases such as customer lists and sales data owned by a company are protected by copyright depends on whether the “selection or systematic arrangement” of that information is recognized as creative (Japanese Copyright Law, Article 12-2). If the arrangement is commonplace or determined inevitably for a specific purpose, creativity may be denied, and the database may not be protected by copyright. Companies need to accurately assess whether their information assets are mere data collections or creative works and develop a multi-layered information management strategy that also considers other means of protection (for example, protection as trade secrets under the Unfair Competition Prevention Law or through contracts).

Understanding the Duration of Copyright Protection Under Japanese Law

Once copyright arises, the rights are not perpetual. Japanese Copyright Law aims to protect the rights of authors while also releasing works into the public domain after a certain period, thus promoting free use and contributing to cultural development. Therefore, a clear duration of protection is established.

To understand how the duration is calculated, the first principle to grasp is the ‘calendar year system.’ Article 57 of the Japanese Copyright Law stipulates that the calculation of the protection period begins on January 1st of the year following the event that triggers the start of the period, such as the author’s death, the publication date, or the creation date of the work. For example, if an author dies on May 15, 2024, the starting date for calculating the protection period of their works would be January 1, 2025. If the protection period is 70 years, it would expire on December 31, 2094. This calendar year system simplifies the calculation and is universally applied to all durations of protection.

There are two main systems for considering the duration of protection under Japanese Copyright Law. One is the ‘post-mortem system,’ which applies when the author is an individual and uses the author’s death as the starting point. The other is the ‘publication system,’ which applies when the author is difficult to identify or is a legal entity, using the publication of the work as the starting point. The applicable principle significantly affects the length of the protection period, making it essential to understand the distinction accurately.

The Fundamental Protection Period: 70 Years After the Author’s Death Under Japanese Copyright Law

The most basic principle regarding the duration of copyright protection under Japanese Copyright Law is that rights persist for 70 years following the author’s death. This applies when the author is an individual and the work has been published under their real name (or a widely known pseudonym). Article 51, Paragraph 2 of the Japanese Copyright Law states, “Copyright shall subsist until 70 years have passed after the death of the author.” This period is established not only during the lifetime of the author but also for a certain period after their death to protect the interests of the heirs or successors in title.

This protection period was previously “50 years after death,” but with the enforcement of the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (TPP11), it was extended to “70 years after death” starting from December 30, 2018 (Heisei 30). This extension was made to harmonize with international standards. Importantly, for works whose copyright had already expired at the time this amendment came into force, the protection period is not retroactively extended. This is referred to as the principle of “non-retroactivity of protection.”

In the case of “joint works” created by multiple authors, the calculation of the protection period differs slightly. According to the proviso in Article 51, Paragraph 2 of the Japanese Copyright Law, it is set at “70 years after the death of the last surviving author.” For instance, if a novel was co-authored by two people, the copyright does not expire with the death of the first author; instead, the 70-year period begins from the time of the second author’s death. This provision takes into account that the contributions of each author to a joint work are indivisible and integral.

Exceptional Protection Periods Under Japanese Copyright Law

In cases where it is difficult or inappropriate to apply the principle based on the death of the author, Japanese copyright law provides for exceptional protection periods. For instance, when the identity of the author is unknown or when the author is a corporation, which does not have the concept of ‘death.’ To address such cases, Japanese copyright law establishes exceptional protection periods that start from different points, such as the time of publication of the work. These exceptional provisions are of great practical importance as they apply to many works created in the course of corporate activities.

Works Published Anonymously or Under a Pseudonym

For works published without revealing the author’s real name, either anonymously or under a pseudonym (such as a pen name), it is difficult to objectively determine the time of the author’s death. Therefore, Article 52 of the Japanese Copyright Law stipulates that the protection period for these works is “70 years after the publication of the work.”

However, there are several exceptions to this provision. First, if it becomes clear before the 70 years have passed since publication that 70 years have elapsed since the author’s death, the protection period expires at that point. Additionally, if the author takes any of the following actions within a specified period, the protection period will switch to the standard “70 years after death”:

1. The author registers their real name with the Agency for Cultural Affairs (Article 75 of the Japanese Copyright Law).
2. The author republishes their work, displaying their real name or a well-known pseudonym as the author’s name.

These provisions provide authors or their heirs with options to secure a longer protection period.

Works Authored by Organizations

Many works created by companies fall into this category. Works for which a corporation or other organization is named as the author, known as “works made for hire” or “corporate works,” cannot apply the principle of post-mortem duration because, unlike natural persons, corporations do not have a “death.” Therefore, Article 53 of the Japanese Copyright Law stipulates that the protection period for these copyrights is “70 years after the publication of the work.” Furthermore, if the work is not published within 70 years of its creation, the protection period expires “70 years after its creation.”

What is crucial here is the circumstances under which an organization becomes the “author.” This is determined by the requirements for “works made for hire” as set forth in Article 15 of the Japanese Copyright Law. Specifically, works that are ① created based on the initiative of a corporation, ② by a person engaged in the corporation’s business, ③ in the course of their duties, and ④ published under the name of the corporation (excluding computer programs), are considered to be authored by the corporation unless otherwise stipulated by contract or work regulations.

In other words, for a company to be the subject of copyright and to be eligible for the 70-year protection period after publication, it is a fundamental prerequisite that the work meets the requirements of a work made for hire. Establishing clear provisions in employment contracts or work regulations regarding the attribution of rights for works created by employees is not only crucial for determining the owner of the rights but also indirectly affects the duration of those rights through changes in the applicable articles, making it extremely important.

Copyright Protection of Films Under Japanese Law

Films, as creative works, have unique personalityistics due to the involvement of numerous staff members and significant capital investment. Consequently, they are subject to special provisions regarding the duration of copyright protection. Article 54 of the Japanese Copyright Law stipulates that the copyright of a film shall last for “70 years after the work has been made public.” Similarly to works created in the name of an organization, if a film is not published within 70 years of its creation, the copyright period expires “70 years after its creation.”

There have been significant legal cases concerning the duration of copyright protection for films, involving debates over legislative amendments and the principle of non-retroactivity. One such case is the “Shane Case” (Supreme Court of Japan, December 18, 2007, decision). This case revolved around the 1953 film “Shane.” Under the copyright law at the time, the protection period for films was 50 years post-publication, which meant that the copyright for “Shane” should have expired on December 31, 2003. However, with the amended Copyright Law enforced on January 1, 2004, the protection period for films was extended to 70 years after publication. The rights holders argued that this extended provision should apply to “Shane” as well.

Nevertheless, the Supreme Court of Japan rejected the rights holders’ claim. The rationale for the decision was that, as of January 1, 2004, when the amended law came into effect, the copyright for “Shane” had already expired the previous day, on December 31, 2003, and had entered the public domain. The principle of non-retroactivity in law was affirmed, stating that rights that have already been extinguished cannot be revived by subsequent legislative amendments.

This judgment not only determined the rights period for a single film but also held significant implications by providing clear legal stability regarding the impact of legislative changes on the duration of copyright protection. It ensured predictability for companies seeking to use past creative works, allowing them to make reliable determinations about whether a work is in the public domain based on the law in effect at the time the rights expired. This demonstrated that the public domain is a stable cultural resource that can be utilized without the risk of being overturned by future legislative amendments.

Comparison of Copyright Protection Periods

The table below summarizes the principles and exceptions of copyright protection periods that we have explained so far. This table is designed to provide an overview of which protection periods apply to different types of works and when the calculation of those periods begins.

Conclusion

As detailed in this article, the Japanese copyright system is based on a clear legal framework, from the inception to the expiration of rights. The system adopts the principle of ‘formality-free’ for the creation of rights, meaning registration is not required; however, ‘originality’ is a prerequisite for protection. This suggests that not all information generated by companies is automatically protected, which is an important consideration for asset management. Regarding the duration of protection, the principle of ’70 years after the death of the individual author’ applies, while for works created under a corporate name or films, an exceptional principle of ’70 years after publication’ applies. Understanding these rules accurately and knowing which category the copyrighted works owned or used by your company fall under, and how long they are protected, is essential in formulating an intellectual property strategy.

Monolith Law Office possesses deep expertise in Japanese copyright law and a track record of providing extensive advice to both domestic and international clients. We specialize in offering strategic legal support for issues related to intellectual property rights that cross national borders, particularly for companies engaged in international business. Our firm includes several English-speaking professionals with foreign legal qualifications, enabling us to overcome cultural and legal system differences and provide optimal solutions through smooth communication to lead our clients’ businesses to success. We are ready to assist with all inquiries related to the themes addressed in this article, including copyright management, licensing agreements, and dispute resolution.