Chapter VII Infringement of Rights
(Right to Demand an Injunction)
Article 112 (1) The author, copyright owner, owner of print rights, performer, or owner of neighboring rights, may file a claim against a person who is infringing or who is likely to infringe the moral rights of the author, the copyright, the print rights, the moral rights of the performer, or the neighboring rights, for the cessation or pre-vention of such infringement.
(2) When filing the demand under the preceding paragraph, the author, copyright owner, owner of print rights, performer, or owner of neighboring rights may demand the destruction of objects that give rise to an act of infringement, objects made through an act of infringement, or machines or tools used solely for an act of infringe-ment, or demand that any other measures necessary to effect the cessation or preven-tion of infringement be taken.
(Acts Deemed to Constitute Infringement)
Article 113 (1) The following acts are deemed to constitute infringement of the moral rights of the author, the copyright, the print rights, the moral rights of the per-former, or the neighboring rights:
(i) the importation, for the purpose of distribution in Japan, of an object that is made through an act that, were the object to be made in Japan at the time of its import, would constitute infringement of the moral rights of the author, the copy-right, the print rights, the moral rights of the performer, or the neighboring rights;
(ii) the distribution, possession for the purpose of distribution, offering for dis-tribution, exportation in the course of trade, or possession for the purpose of ex-portation in the course of trade, of an object made through an act that infringes the moral rights of the author, the copyright, the print rights, or the neighboring rights (including an object imported as referred to in the preceding item), with knowledge of such infringement.
(2) The use of a copy made through an act that infringes the copyright to a work of computer programming (including copies made by the owner of such copies pursu-ant to the provisions of Article 47-3, paragraph (1) as well as copies of a work of computer programming imported as referred to in item (i) of the preceding paragraph and copies made by the owner of such imported copies pursuant to the provisions of Article 47-3, paragraph (1)) on a computer in the course of business is deemed to constitute an infringement of the copyright, but only if the person using such copy had knowledge of such infringement at the time that the person acquired the title to use the copy.
(3) The circumvention of technological exploitation restriction measures (mean-ing making it possible to view or listen to a work, etc. that technological exploitation restriction measures have been used to restrict from being view or listened to, by hindering the effect of those technological exploitation restriction measures (unless this is done based on the intent of the owner of the copyright, etc.); the same applies in Article 120-2, items (i) and (ii)) is deemed to constitute infringement of the copy-right, print rights, or neighboring rights connected to those technological exploitation restriction measures unless this is done within a scope that is justified for the purpose of research or technological development in connection with technological exploita-tion restriction measures, or otherwise does not harm the interests of the owner of the copyright, etc.
(4) The following acts are deemed to constitute infringement of the moral rights of the author, the copyright, the moral rights of the performer, or the neighboring rights to which the relevant rights management information pertains:
(i) the intentional addition of false information as rights management informa-tion;
(ii) the intentional removal or alteration of rights management information (ex-cluding when this is due to technological constraints involved in the conversion of recording or transmission methods and any other case in which this is found to be unavoidable in light of the purpose and circumstances of the exploitation of the work or performance, etc.);
(iii) the distribution, importation, or possession for the purpose of distribution, of copies of a work or performance, etc. with the knowledge that an act referred to in one of the preceding two items has been carried out on such work or perfor-mance, etc., or the transmission to the public or making available for transmission of such work or performance, etc. with knowledge of such an act.
(5) With regard to the application of the provisions of the preceding paragraph,the right to receive the remuneration provided for in Article 94-2; Article 95-3, para-graph (3); and Article 97-3, paragraph (3) and the right to receive the secondary use fees provided for in Article 95, paragraph (1) and Article 97, paragraph (1) are deemed to be neighboring rights. In this case, in the preceding Article, the phrase "owner of neighboring rights" is deemed to be replaced with "owner of neighboring rights (in-cluding the owner of rights deemed to be neighboring rights pursuant to the provi-sions of paragraph (5) of the following Article)", and in paragraph (1) of the preceding Article, the phrase "neighboring rights" is deemed to be replaced with "neighboring rights (including the rights deemed to be neighboring rights pursuant to the provi-sions of paragraph (5) of the following Article)".
(6) If the owner of a copyright or neighboring rights that personally publishes or allows another person to publish a commercial phonogram intended for distribution in Japan (hereinafter in this paragraph referred to as a "commercial phonogram for domestic distribution") personally publishes or allows another person to publish abroad a commercial phonogram that is the same as the commercial phonogram for domestic distribution but that is intended exclusively for distribution abroad (herein-after in this paragraph referred to as a "commercial phonogram for foreign distribu-tion"), the knowing importation of the commercial phonogram for foreign distribu-tion for the purpose of distribution in Japan; the knowing distribution in Japan of the commercial phonogram for foreign distribution; or the knowing possession of the commercial phonogram for foreign distribution for the purpose of distribution in Ja-pan, is only deemed to constitute an act that infringes the copyright or neighboring rights of the copyright owner or the owner of neighboring rights if the profits that these persons would foreseeably obtain through the publication of the commercial phonogram for domestic distribution are unreasonably adversely affected by the dis-tribution in Japan of the commercial phonogram for foreign distribution; provided, however, that this does not apply with regard to the importation, distribution in Ja-pan, or possession for the purpose of distribution in Japan, of a commercial phono-gram for foreign distribution that is the same as a commercial phonogram for domes-tic distribution which has passed beyond the Cabinet-Order-specified period of not more than seven years counting from the day on which that phonogram is first pub-lished in Japan.
(7) The exploitation of a work in a way that is prejudicial to the honor or reputa-tion of the author is deemed to constitute an infringement of the author's moral rights.
(Special Provisions on the Right of Transfer of a Bona Fide Third Party)
Article 113-2 If, at the time a person is transferred the original or a copy of a work (excluding a copy of a cinematographic work (if the work is one that has been reproduced in a cinematographic work, this includes copies of the cinematographic work); the same applies hereinafter in this Article), a sound or visual recording of a performance, or a copy of a phonogram, the person does not know that the original or copy of the work, sound or visual recording of the performance, or copy of the pho-nogram does not fall under any of the items of Article 26-2, paragraph (2); Article 95-2, paragraph (3); or Article 97-2, paragraph (2), respectively, and is not negligent in hav-ing failed to learn this, such person's transfer of the original or copy of the work, the sound or visual recording of the performance, or the copy of the phonogram to the public is deemed not to constitute an infringement of the rights set forth in Article 26-2, paragraph (1); Article 95-2, paragraph (1); or Article 97-2, paragraph (1).
(Presumption of the Amount of Damage)
Article 114 (1) If the owner of the copyright, etc. claims compensation for damage incurred due to infringement, against a person that, intentionally or due to negligence, infringes the owner's copyright, print rights, or neighboring rights, and the infringer has transferred an object that was made through the relevant act of infringe-ment or has made a transmission to the public (or has made the relevant work or performance available for transmission, if the object has been transmitted to the pub-lic via automatic public transmission) that constitutes an act of infringement, the amount calculated by multiplying the number of objects so transferred or the number of copies of the work or performance, etc. that have been made as a result of the public's receipt of that transmission to the public (hereinafter in this paragraph, cop-ies so received are referred to as "copies transmitted and received"and the number of objects so transferred or of copies transmitted and received is referred to as the "number transferred, etc."), by the amount of profit per unit from objects (including copies transmitted and received) that the owner of the copyright, etc. could have sold if there had been no act of infringement, may be fixed as the amount of damage that the owner of the copyright, etc. has incurred, within the limits of an amount propor-tionate to the ability of the owner of the copyright, etc. to sell those objects or engage in other related acts; provided, however, that if there are circumstances due to which the owner of the copyright, etc. would have been unable to sell a number of objects equivalent to all or part of the number transferred, etc., an amount proportionate to the number of objects corresponding to such circumstances is deducted from the amount of damage thus calculated.
(2) If a copyright owner, the owner of print rights, or the owner of neighboring rights claims compensation for damage incurred due to infringement, against a per-son that, intentionally or due to negligence, infringes the owner's copyright, print rights, or neighboring rights, and the infringer has made a profit from the act of in-fringement, the amount of that profit is presumed to be the amount of damage that the copyright owner, the owner of print rights, or the owner of neighboring rights has in-curred.
(3) The copyright owner, the owner of print rights, or owner of neighboring rights may fix the amount of damages incurred as being equivalent to the amount of money that the owner should have received in connection with the exercise of the copyright, print right or neighboring right, and may claim compensation therefor against a per-son that, intentionally or due to negligence, infringes the owner's copyright, print rights or neighboring right.
(4) If the copyright owner or owner of neighboring rights claims compensation for damage pursuant to the provisions of the preceding paragraph against a person that has infringed the owner's copyright or neighboring rights and the copyright or neighboring rights are managed by a copyright manager provided for in Article 2, paragraph (3) of the Copyright Management Business Act (Act No. 131 of 2000) under a management entrustment agreement provided for in Article 2, paragraph (1) of that Act, the copyright owner or owner of neighboring rights may fix the amount provided for in the preceding paragraph using the amount of royalties for the work, etc. associ-ated with the copyright or neighboring rights, calculated based on those of the provi-sions of the royalty rules established by the copyright manager that are provided for in Article 13, paragraph (1) of the Copyright Management Business Act which are applicable to the circumstances of the exploitation of the work, etc. associated with the act of infringement (if there are several methods for calculating that amount, this means the largest of the amounts calculated based on those methods).
(5) The provisions of paragraph (3) do not preclude any claim to compensation for damage in excess of the amount referred to therein. In such a case, the court may consider the absence of intent or gross negligence by the person that infringed the copyright, print rights, or neighboring rights, in fixing the amount of compensation for the damage.
(Duty to Clarify Specific Circumstances)
Article 114-2 In litigation involving infringement of the moral rights of an author, a copyright, print rights, the moral rights of a performer, or neighboring rights, if the adverse party denies the specific circumstances of the thing that is being asserted, by the author, copyright owner, owner of print rights, performer, or owner of neighbor-ing rights, to constitute an act of infringement or to have been made through an act of infringement, the adverse party must clarify the specific circumstances of the adverse party's own actions; provided, however, that this does not apply if there are reasona-ble grounds for the adverse party not being able to clarify these.
(Submission of Documents)
Article 114-3 (1) In litigation involving infringement of the moral rights of an author, a copyright, print rights, the moral rights of a performer, or neighboring rights, the court, at the petition of a party, may order a party to submit documents that are needed to prove the relevant act of infringement or to calculate the damage caused by the relevant act of infringement; provided, however, that this does not apply if the person in possession of such documents has just cause for refusing to submit them.
(2) If the court finds it to be necessary in order to judge whether the just cause set forth in the proviso to the preceding paragraph is present, the court may have the person in possession of documents present such documents. In such a case, no per-son may request the disclosure of any document so presented.
(3) In a case referred to in the preceding paragraph, if the court finds that it is necessary to disclose a document referred to in the second sentence of the preceding paragraph and hear opinions with regard to whether the just cause provided for in the proviso to paragraph (1) is present, the court may disclose that document to the par-ties, etc. (meaning the parties (or if a party is a corporation, its representative), or the parties' agents (other than litigation representatives and assistants in court), employ-ees, or any other worker; the same applies in Article 114-6, paragraph (1)), their litiga-tion representatives, or their assistants in court.
(4) The provisions of the preceding three paragraphs apply mutatis mutandis to the presentation of the object of any inspection that is necessary for proving the rele-vant act of infringement in litigation involving infringement of the moral rights of an author, a copyright, print rights, the moral rights of a performer, or neighboring rights.
(Duty of the Parties to Explain to an Appraiser)
Article 114-4 In litigation involving infringement of a copyright, print rights, or neighboring rights, if, at the petition of a party, the court orders an appraisal of par-ticulars that are necessary for calculating the damage caused by the relevant act of infringement, the parties must explain the particulars necessary for such appraisal to be made to the appraiser.
(Approval of a Reasonable Amount of Damage)
Article 114-5 When damage is found to have been incurred in litigation involving infringement of a copyright, print rights, or neighboring rights, if, due to the nature of the relevant facts, it is extremely difficult to prove the facts that are necessary for proving the amount of damage, the court may approve a reasonable amount of dam-age based on the overall gist of oral proceedings and the results of the examination of evidence.
(Confidentiality Protective Orders)
Article 114-6 (1) In litigation involving infringement of the moral rights of an author, a copyright, print rights, the moral rights of a performer, or neighboring rights, if a prima facie showing of circumstances that fall under both of following is made with regard to a trade secret kept by a party (meaning a trade secret as provided in Article 2, paragraph (6) of the Unfair Competition Prevention Act (Act No. 47 of 1993); the same applies hereinafter), the court, at the petition of the party, may issue a ruling ordering a party, etc., litigation representative, or assistant in court not to use the trade secret for purposes other than those of pursuing the relevant litigation, or not to disclose the trade secret to persons other than those that are subject to an order un-der the provisions of this paragraph that involves that trade secret; provided, howev-er, that this does not apply if the party, etc., litigation representative, or assistant in court has acquired or gained possession of the relevant trade secret before the peti-tion is filed, by means other than the perusal of the brief referred to in item (i) or the examination of evidence or disclosure referred to in that item:
(i) a trade secret kept by a party is detailed in a brief that has already been submitted or that must be submitted, or a trade secret is included in the content of evidence that has already been examined or that must be examined (including doc-uments disclosed pursuant to the provisions of Article 114-3, paragraph (3));
(ii) the use of the trade secret referred to in the preceding item for a purpose other than pursuing litigation or the disclosure of that trade secret would be likely to hinder the business activities of the party that are based on that trade secret, and it is necessary to restrict such use or disclosure in order to prevent such hindrance.
(2) A petition for an order under the provisions of the preceding paragraph (here-inafter referred to as a "confidentiality protective order") must be filed in writing and detail the following particulars:
(i) the person that would be subject to the confidentiality protective order;
(ii) facts sufficient to identify the trade secret that would be made the subject of the confidentiality protective order;
(iii) facts falling under the category of circumstances set forth in the items of the preceding paragraph.
(3) If a confidentiality protective order has been issued, the written ruling must be served on the person that the confidentiality protective order has been issued against.
(4) A confidentiality protective order comes into force as from the time at which a written ruling is served on the person that has become subject to the confidentiality protective order.
(5) An immediate appeal against a ruling may be filed against a judicial decision denying a petition for a confidentiality protective order.
(Cancelation of a Confidentiality Protective Order)
Article 114-7 (1) A person that petitions for a confidentiality protective order or a person that becomes subject to a confidentiality protective order may file a peti-tion with the court that has the case record on file (if there is no such court, with the court that issued the order) to cancel the confidentiality protective order, on the grounds that any of the conditions referred to in paragraph (1) of the preceding Arti-cle are lacking or have come to be lacking.
(2) Once the judicial decision is reached on a petition to cancel a confidentiality protective order, the written ruling must be served on the person that has filed the petition and on the adverse party.
(3) An immediate appeal against a ruling may be filed against a judicial decision on a petition to cancel a confidentiality protective order.
(4) A judicial decision canceling a confidentiality protective order does not take effect until it becomes final and binding.
(5) If the court reaches a judicial decision to cancel a confidentiality protective order, and any person other than the person that has filed the petition to cancel the confidentiality protective order or the adverse party is subject to a confidentiality protective order involving the relevant trade secret in the litigation in which such confidentiality protective order was issued, the court must immediately notify such person that it has reached a judicial decision to cancel the confidentiality protective order.
(Notice of a Request to Inspect Case Records; Related Matters)
Article 114-8 (1) In the event that the ruling provided for in Article 92, para-graph (1) of the Code of Civil Procedure (Act No. 109 of 1996) is reached with regard to the case record in connection with litigation in which a confidentiality protective order has been issued (excluding litigation with regard to which all confidentiality protective orders have been cancelled), if a party to the case requests to inspect, etc. a portion of the case record in which a secret provided for in that paragraph is en-tered, and the person filing such request is not subject to the confidentiality protective order in the relevant litigation, the court clerk, immediately after such request is filed, must notify the party that filed the petition referred to in that paragraph (unless the person filing that petition is the person filing the request; the same applies in para-graph (3)) that the request has been filed.
(2) In a case referred to in the preceding paragraph, the court clerk must not al-low the person filing the request to inspect, etc. a portion of the case record in which a secret as referred to in that paragraph is entered, until two weeks have passed since the day the court clerk receives the request (or if, during those two weeks, a petition for a confidentiality protective order is filed against the person filing the request, the court clerk must not allow the person filing the request to inspect, etc. such a portion of the case record until the judicial decision on the petition becomes final and bind-ing).
(3) The provisions of the preceding two paragraphs do not apply if all parties concerned that have filed a petition as referred to in Article 92, paragraph (1) of the Code of Civil Procedure agree to allow the person filing the request referred to in paragraph (1) to inspect, etc. the portions of the case record in which the secrets re-ferred to in that paragraph are entered.
(Measures to Restore the Author's or Performer's Honor)
Article 115 An author or performer may file a claim against a person that, inten-tionally or due to negligence, has infringed that author's or performer's moral rights, demanding that that person take the appropriate measures to ensure that the author or performer is identified as the author or performer, to correct modifications to the work or performance, or to restore the author's or performer's honor or reputation, either in lieu of or in addition to claiming damages.
(Measures to Protect the Author's or Performer's Moral Interests Posthu-mously)
Article 116 (1) After the death of an author or performer, a surviving family member (meaning a surviving spouse, child, parent, grandchild, grandparent, or sib-ling of the deceased author or performer; the same applies hereinafter in this Article) may file the claim referred to in Article 112 against a person that violates or is likely to violate the provisions of Article 60 or Article 101-3 with respect to the relevant au-thor or the performer, and may file the claim referred to in the preceding Article against a person that, intentionally or due to negligence, infringes the moral rights of the author or performer or violates the provisions of Article 60 or Article 101-3.
(2) The order in which surviving family members are permitted to file the claim referred to in the preceding paragraph is the order in which they are listed in that paragraph; provided, however, that if the author or performer leaves a will stipulating a different order, the order given in the will applies.
(3) An author or performer, in a will, may designate the person that is permitted to file the claim referred to in paragraph (1) on behalf of the surviving family mem-bers. In this case, the designated person may not file such a claim once 70 years have passed, counting from the year after that in which the author or performer dies (or, if surviving family members are still alive at such a time, the designated person may not file such a claim once there are no longer any surviving family members).
(Infringement with Respect to a Joint Work)
Article 117 (1) Any one co-author or copyright owner in a joint work may file the claim referred to in Article 112, claim that co-author's or co-owner's personal share of compensation for damage due to copyright infringement, or claim the return of the benefit of any unjust enrichment in accordance with that co-author's or co-own-er's personal share, without the consent of the other co-authors or co-owners of the copyright.
(2) The provisions of the preceding paragraph apply mutatis mutandis in connec-tion with infringement of a copyright or neighboring rights in co-ownership.
(Preservation of Rights to Anonymous and Pseudonymous Works) Article 118 (1) The publisher of an anonymous or pseudonymous work may file the claim referred to in Article 112, Article 115, or Article 116, paragraph (1) or may claim damages or the return of the benefit of any unjust enrichment in that per-son's own name, on behalf of the author or the owner of the copyright to the work; provided, however, that this does not apply if the pseudonym is the name by which the author is commonly known or if the true name of the author has been registered as referred to in Article 75, paragraph (1).
(2) A person whose true name or the pseudonym by which the person is common-ly known is indicated in the customary manner on copies of an anonymous or pseu-donymous work as the name of the publisher of the work is presumed to be the pub-lisher of that work.