The exploitation of a copyrighted works for use in training generative AI appears to be permitted in Japan, with a few reasonable caveats. This puts Japan into a very, very small group of countries where, even for commercial AI training on copyrighted data, copyright infringement is reasonably unlikely.
As background, the Japanese Copyright Act has long been known for its stringent and specific defenses compared to, for example, the more flexible "fair use" doctrine in the United States. Under the old framework, Japan's copyright law provided a rigid and exclusive list of defenses, specifying situations where copyrighted works could be used without authorization from the copyright owner.
In 2018, a significant amendment aimed to modernize this framework by expanding and generalizing the scope of these defenses. This change sought to promote innovation and enable the use of copyrighted works without the owner's authorization when such use does not significantly affect the market for those works.
The 2018 amendment also introduced the Non-Enjoyment Purpose (NEP) defense under Article 30-4 of the Copyright Act, allowing some flexibility in responding to new technological uses of works. This defense applies when the purpose of the exploitation is not to enjoy or cause others to enjoy the copyrighted work's expression.
The practical application of these amendments in the face of rapidly advancing AI, begged for some further review and clarification.
So, in July 2023, the Copyright Subdivision's Legal System Subcommittee initiated a comprehensive review of AI-related copyright issues, solicited and receiving an overwhelming 24,938 public comments, and published a report titled “Perspectives Regarding AI and Copyright” on March 15, 2024. This report, while not legally binding, has pull and aims to fill the gaps in current legal interpretations until judicial precedents are established.
Several reasonable exceptions and clarifications to the NEP defense exist. In scenarios where the purpose of enjoyment and non-enjoyment coexist, by essentially training AI to produce the expressions of copyrighted works by jumping through technical hoops, copyright is still infringed.
The NEP defense is further negated under the “Article 30-4 Proviso” when acts conflict with the market for the use of the copyrighted works of the copyright owner or hinder potential future sales channels for the copyrighted works. For example, training AI on data collected by avoiding technical measures taken to prevent the data’s collection can lead to liability.
As the world continues to navigate the relationship between AI and copyright, a "wait and see" approach will be necessary until precedents are definitively adjudicated in Japanese and international courts. In the interim, the recent report provides a very good incentive for AI developers to set up their servers in Japan.