Japanese Government Identified Issues Related to AI and Copyrights

By Aiko Yamada and Yuki Sako

Aiming to address creators’ concerns and to minimize risks of copyright infringement by artificial intelligence (AI) developers and users, the Agency for Cultural Affairs, Government of Japan convened panels at the Legal System Subcommittee of the Copyright Committee on 26 July 2023 and 5 September 2023 to identify issues to resolve in relation with generative AI and copyrights as roughly noted below:

Do Inputs to AI Infringe Copyrights?

• The Copyright Act of Japan solely allows use of copyrighted works for information analysis purposes without permission from applicable creators, provided that the use (i) is limited to the minimum necessary and (ii) does not unreasonably harm creators’ interests.
• While inputs to AI should be generally considered as being done for information analysis purposes only, unsettled issues include: whether and what exceptions there would be, and what specific cases would be considered to “unreasonably harm creators’ interests.”

Do Outputs From AI Infringe Copyrights?

• Factors to be considered to determine copyright infringement are:
  • Similarity, which generally requires common creative representations in two works, which means any commonality in mere idea or facts or ordinary representations would not pass the threshold for the similarity requirement. An issue would be whether and how differently to review AI products from human products in the judgement of the similarity requirement.
  • Dependency, which generally requires the awareness of the first work by the second creator, the degree of sameness of the works, and the backgrounds to the creation of the second work. An issue would be how to review cases where humans creating the second work by using AI are unaware of the initial work.

Are AI-Generated Products Copyrightable?

Products generated autonomously by AI are not copyrightable. AI-generated products generated by humans with their creative intentions and contributions would likely be copyrightable. An issue would be how to make the factor “creative contributions” more specific.

The Agency is aiming to publish their views on how to resolve the issues identified. It would be important for any AI developer or user to follow this development in order to prevent any copyright infringement by the development or use of AI.