Japanese Copyright Law Reform: Introduction of the Mysterious Anglo-American Fair Use Doctrine or an EU Style Divine Intervention via Competition Law?

摘要

What reforms does Japanese copyright law need in order to correct the failings of the current system? The existing copyright regime is based on 19th-century civil law doctrine, but is refracted through a uniquely Japanese prism, a refraction that creates uniquely Japanese problems. This article sets forth two possible solutions. The first is to introduce an open-ended general limitation clause, such as the American fair use system. The second is to adopt an EU-style approach in which the legislative body makes amendments of individual restriction provisions in a timely manner and, when necessary, the judiciary applies national copyright law and competition law interactively to deal with any Magill-style conundrum. In this context, this article outlines the American fair use principle and the United Kingdom's fair dealing, and gives a general picture of the Japanese Copyright Act's historical background and its distinctive character. It asserts that current Japanese copyright law is effectively obsolete; its approach too rigid to deal effectively with new technologies. Current Japanese copyright law stands in the way of innovation, stifling new modes of exploitation and creating chilling effects. We investigate the contrasting manner in which the United States and the EU nations approach new technologies. Finally this article discusses the best way forward for the Japanese copyright legal regime.