Generative AI Development & Copyright Protection

The Japanese Government’s Society 5.0 initiative seeks to strike a delicate balance between fostering greater freedom in Generative AI advancements and safeguarding copyright interests. Against this backdrop, the Copyright Act’s Art. 30-4 exemption allows for the generation of works by incorporating a myriad of existing works as training data for the AI, unless incorporating such work would unreasonably prejudice the interests of the copyright owners. However, severe concerns have been raised by the Japanese news media over this exemption in relation to the protection of their copyright interests. In response to such concerns, the “Approach to AI and Copyright” (the “Approach”) was released on March 15, 2024 by the Legal System Subcommittee of the Copyright Subdivision of the Cultural Council supported by the Ministry of Education (the “MEXT”) .

1. “Society 5.0” and the Copyright Act’s Article 30-4

The Japanese government intends to build a human centered society, termed as “Society 5.0”: a model society that will thoroughly integrate the cyberspace and the physical space to not only achieve economic development but to also provide solutions to various social issues. “The Human-Centered Social Principles with AI” was announced in March 2019. And the “Hiroshima AI Process”, initiated in October 2023, has been aimed to establish the first international policy framework encompassing guidelines and codes of conduct.  Its purpose is to promote the development of safe, secure, and reliable advanced AI systems.

While the governmental policy remains in effect, the text of Article 30-4 of the Copyright Act is as follows:

“It is permissible to exploit a work, in any way and to the extent considered necessary, in any of the following cases, or in any other case in which it is not a person’s purpose to personally enjoy or cause another person to enjoy the thoughts or sentiments expressed in that work; provided, however, that this does not apply if the action would unreasonably prejudice the interests of the copyright owner in light of the nature or purpose of the work or the circumstances of its exploitation:

(1) if it is done for use in testing to develop or put into practical use technology that is connected with the recording of sounds or visuals of a work or other such exploitation;

(2) if it is done for use in data analysis (meaning the extraction, comparison, classification, or other statistical analysis of the constituent language, sounds, images, or other elemental data from a large number of works or a large volume of other such data ;[…]);

(3) if it is exploited in the course of computer data processing or otherwise exploited in a way that does not involve what is expressed in the work being perceived by the human senses (for works of computer programming, such exploitation excludes the execution of the work on a computer), beyond as set forth in the preceding two items.”

(NOTE: Interim translation as provided for by Japanese Law Translation. )

This provision generously allows for the generation of works by incorporating a myriad of existing works as training data for the AI. Naturally, the question emerges: what is the threshold for “Exploitation not for Enjoyment Purposes”?

2. Is Japan still considered a paradise for Generative AI development?

In response to the severe concerns raised by the Japanese news media, the Approach was publicly released.  The Approach aims to present the appropriate way to interpret and discuss the ongoing issues concerning Art. 30-4 of the Japanese Copyright Act, serving as a reference, among the Copyright experts of the Cultural Council.

The Approach introduced several key aspects. However, before delving into these, it is essential to grasp the perspectives and dialogues outlined below:

(1) What is “Enjoyment”?

The term “Enjoyment” should be interpreted from a perspective of whether the act is intended towards obtaining the utility of satisfying the intellectual and mental desire of the viewer, etc. through the viewing, etc. of the work, etc.

(2) What is “an act not intended to be enjoyed or to cause to be enjoyed”?

The Cultural Affairs Agency’s as well as the majority of academic’s and practitioner’s views are outlined: [E]ven when the primary motive is not enjoyment, if there is an element of enjoyment involved, the concept of “purpose of enjoyment…” becomes applicable, and subsequently, Art.30-4 does not apply. Therefore, for the application of the non-enjoyment purpose exemption, the intention of the viewer, etc. should be 100% for non-enjoyment purposes.

However, the minority opinion on the same question presents a different perspective on this issue.  It asserts that if the principal motive of the viewer, etc. is for a non-enjoyment purpose, then such instance would fall under the “non-enjoyment purpose” exemption and Art. 30-4 will apply.

3. The persistent critique by the news media remains unabated

The Approach was a response by the Copyright Council supported by the MEXT against the severe persistent criticism on the development of Generative AI under Art. 30-4’s exemption of “non-enjoyment purpose” from the Japan Newspaper Publishers & Editors Association (JNPEA). In the spring of 2023, the JNPEA announced their serious concerns about the rapid advancements of Generative AI’s capabilities, e.g. Retrieval Augmented Generation (RAG)-like method, etc. to bring about copyright infringements.  Interestingly, at present, no litigation has been initiated by the JNPEA or other news media organizations in Japan in relation to Article 30-4 of the Copyright Act. But perhaps extinguishing the ongoing criticism is a formidable task for the Approach.  Nevertheless, the “story” persists.