• THE STATE OF AI
JAPAN
MY ADVICE...
AI’s complex relationship with IP
Stay Informed: Keep abreast of the latest policy developments and legal guidelines regarding AI and IP rights in Japan, especially the outcomes of the Intellectual Property Strategy Headquarters and the Agency for Cultural Affairs’ forthcoming reports. Jurisdictional Compliance: While determining applicable law is done on a case-by-case basis, the likelihood of the Japanese Copyright Act being applicable is increased by the presence of AI learning, development, or operation servers within Japan, or when AI-generated content is transmitted to users in Japan. Copyright Compliance in AI Learning: Japan is sometimes dubbed the “machine learning paradise,” but there are limits. Reproducing and using training data provided for a fee, without making the required payment, circumventing technical protections to use data for AI training, and special AI training that aims to output the representation of a particular existing copyrighted work may constitute copyright infringement and should be avoided.
in including a request for clarification of the interpretation and strict application of the provisions (Article 30-4). Proposals include: • Implementing opt-out mechanisms for the use of copyrighted materials in AI training datasets. • Enhancing transparency about the datasets AI technologies use. • Establishing clear guidelines for the creation and use of AI-generated content, including acknowledgment of AI’s role in content creation. • Considering amending the amendment to Article 30-4 of the Copyright Act. These requests from creators are currently being considered in ongoing discussions on AI and copyright at the Agency for Cultural Affairs and Cabinet Office study group discussed below. However, as of now, Japan has yet to see any precedents specifically addressing these issues, marking an uncertain legal landscape that stakeholders are keen to navigate. Q3 Are there any moves to legislate AI-related IP (e.g. Artificial intelligence policy) in your jurisdiction? Since the introduction of the “Society 5.0” concept in 2016, Japan has maintained a pro-AI policy stance, favouring a soft-law approach, primarily through guidelines,
with the notable exception being the 2018 Copyright Act amendment. Following the outcomes of the G7 Hiroshima Summit and the initiation of the Hiroshima AI Process in 2023, Japan has continued to refine its domestic AI strategies, maintaining its preference for soft-law mechanisms. This approach allows for greater flexibility and adaptability, enabling policymakers to respond promptly to the rapidly evolving AI technology sector without the rigidity often associated with formal legislation. Current discussions within the government, particularly those led by the Intellectual Property Strategy Headquarters and the Agency for Cultural Affairs, are pivotal in shaping Japan’s future AI and IP landscape. An interim report by the Intellectual Property Strategy Headquarters is expected around spring 2024, with the Agency for Cultural Affairs’ report scheduled for March 2024. These reports are anticipated to have a significant impact on practical aspects of IP management and copyright considerations in the context of AI. Judging from the draft reports and other documents published so far, there appears to be a consensus leaning away from immediate legislative action or substantial legal reform. Instead, the emphasis remains on enhancing existing frameworks through detailed guidelines and stakeholder consultations. The goal remains to elucidate and address the challenges presented by applying existing copyright laws to AI-generated content, thereby diminishing ambiguities and enhancing legal clarity.
Kenji Kuroda Partner Kuroda Law Offices
two key factors are considered: the similarity of the work and its reliance on an existing work. Typically, reliance is deduced from the degree of similarity, with the assumption that significant similarity implies dependence. However, unique aspects of AI-generated content that closely mimic copyrighted works without explicit reliance on an existing work complicate legal judgments. There is also the problem that if pirated or other illegally uploaded copyrighted works are widely used as training data for generative AI, copyright infringement may be encouraged. Copyrightability: The Copyright Act protects human creative expression, often excluding AI-generated content from copyright. However, there is potential for recognising human creative involvement in AI creations, such as in the crafting of prompts or the selection of outputs. Yet, establishing clear criteria for this recognition and the extent of copyrightability remains a challenge. Complicating matters further is the difficulty in distinguishing between content created by AI and that by humans. Q2 Are creators starting to act on copyright infringements, and have any precedents been set yet?
Q1 Is AI complicating the copyright process in your jurisdiction? Japan’s engagement with AI technologies presents new challenges for copyright law, particularly as generative AI becomes more prevalent. The core issue lies in the ambiguity of applying existing copyright laws to AI-generated content, which raises questions about copyright infringement and the extent of protection offered. Three main areas are affected: Learning/Development Stage: The use of copyrighted material in training AI typically doesn’t constitute infringement under the 2018 amendment (Article 30-4 of the Copyright Act). This provision allows for the use of copyrighted works for purposes beyond personal enjoyment, like data analysis, as long as it doesn’t unreasonably prejudice the interests of the copyright owner. Nonetheless, the ambiguity in defining ‘unreasonable prejudice’ complicates the process of assessing infringement.
Japan express increasing concern over potential infringements on their intellectual property. The main issues revolve around the unauthorised use or ‘free-riding’ of copyrighted materials during the learning stages for AI and the risk of AI replicating creative styles without permission. This has sparked a debate over the sufficiency of current protections under the current Copyright Act, particularly the 2018 amendment (Article 30-4). A number of creator-related organisations have issued statements expressing their concerns about generative AI, but they are unanimous
Kenji Kuroda passed the National Bar Examination in 1983 at 20 years of age. After developing practical experience as an attorney, he attended law school in China (Fudan University Faculty of Law, Advanced Study Course), Denmark and the United States (Duke University Law School). Following his admission to the bar in New York in the United States, Mr. Kuroda founded Kuroda Law Offices and Kuroda Patent Offices in 1995, later establishing our Shanghai office in 2004 and opening the first Japanese law firm in Taiwan in 2009, specialising in cutting-edge fields, such as Chinese law, information technology, and intellectual property, with the aim of providing strategies tailored to the customer’s needs. In its ranking of leading attorneys, Nihon Keizai Shimbun selected Mr. Kuroda second in the international law section and eighth in the international law section (December 19, 2012). In addition, Nikkei Business selected Mr. Kuroda third in the international matters section of its business attorneys ranking (December 22, 2014) and selected Mr. Kuroda fifth in the China practice section (December 7, 2023).
About us...
kuroda-law.gr.jp/en
Kuroda Law Offices (“KLO”) is headquartered in Tokyo, and delivers a diverse range of legal services in fields such as labour, corporate, IP law, fraud investigation, and dispute resolution to a varied clientele, including local and international companies, and Japanese subsidiaries of foreign corporations. Our offices in Shanghai and Taipei, alongside our affiliate KLO Consulting (Shanghai) Co., Ltd., enable us to offer comprehensive, localised service. We specialise in maximising client profits through effective IP rights utilisation, strategic
planning for new products and services without infringing third-party rights, and developing methods to prevent litigation and disputes. Our firm is experienced in handling litigation in various IP-related fields, including LED technology. Utilising our vast experience and expertise, we continually adapt to meet the evolving needs of our clients and the market. At KLO, we are dedicated to providing top-tier legal services, innovating in both established and emerging fields on the world stage.
+81 3577 553 01 kekuroda@kuroda-law.gr.jp irglobal.com/advisor/kenji-kuroda
Generation/Utilisation Stage: To establish copyright infringement,
As generative AI technology advances, creators and copyright holders in
38 | irglobal
irglobal | 39
Made with FlippingBook flipbook maker