Monday, February 25, 2013

Copyright Registration No "Prima Facie" Evidence of Copyright Validity in Japan

In the U.S., the effect of copyright registration is strong. According to 17 U.S.C. Article 410 (c), "the certificate of a registration made before or within five years after first publication of the work shall constitute prima facie evidence of the validity of the copyright" in legal proceedings. The reason is that the U.S. Copyright Office checks whether the material deposited constitutes copyrightable subject matter and that the other legal and formal requirements of this title have been met. Article 410(a). However, this is not the case in Japan.

In Japan, the effect of copyright registration is much weaker. One recent court opinion stated that because the registration application is only checked from the viewpoint of whether the application form is in accordance with the format stipulated by the law (see Order for Enforcement of Copyright Law Article 23), the registration has neither the effect of legal assumption of validity of the copyright, nor the de facto effect of presumption of the copyright validity. April 27, 2011, Tokyo District Court (unreported).

To supplement some basics, in Japan it is even not required to register a copyright for a litigation. You may commence a copyright litigation (such as infringement) without any registration. You may also license or assign the copyright without registration. When, then, do people use copyright registration in Japan? Actually, in some relatively rare cases. 

There are three main kinds of registration: (1) real name of the author, (2) published or created date, and (3) transfer or license.  Here's an official manual for registration (in Japanese).

First, if an author publishes a work with a pseudonym or anonymously, the protection of the copyright is generally 50 years after the published date. However, by registering the real name, the author of the pseudo-named or anonymous work is presumed to be the registered author and the protection extends to 50 years after death of the author. Article 75 of the Copyright Law.

Second, the published date of the works and created date of software can be registered, which presumes the published or created date. Article 76 and 76-2 of the Copyright Law.

Third, when a copyright is assigned or publisher's license is issued, such assignment or license can be registered. Article 77 and 88 of the Copyright Law. In practice, such registration rarely happens. This means that in many transactions, people do not register their transactions. For example, I already co-authored some books which means that I issued a publisher's license to the publisher. But none of the license contracts have been registered. The reason is that usually there would be no conflict on the assignment or transfer of the copyright. However, if you reasonably suspect the possibility of double sale (or double license), the registration is necessary, because whoever first obtains the registration becomes the lawful assignee or licensee. Possibly the publishers think I am a trustworthy lawyer and do not need to worry about a double license!

For your information, the registration of software is conducted at the Software Information Center (SOFTIC) and the other kinds of works are registered at the Agency for Cultural Affairs.

DISCLAIMER: "IT Law issues in Japan" only provides general information about Japanese information technology law and does not, under any circumstances, constitute legal advice. You should first obtain the advice of professional legal counsel who is qualified in Japan before acting or refraining from acting based on this blog.

No comments:

Post a Comment