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The Trans-Pacific Partnership: a Threat to

Japanese Copyright & How Fair Use Can Help

Nakia D. Hansen, J.D.

Advanced Issues in Copyright Law
Professor David Nimmer
Cardozo Law School Spring 2014

In 2013, a draft version of the Intellectual Property chapter of the Trans-
Pacific Partnership [TPP] was leaked
. The TPP is a secret, multi-national economic
trade agreement, encompassing nations representing more than 40 percent of the
world’s GDP
, including: Australia, Brunei Darussalam, Canada, Chile, Japan,
Malaysia, Mexico, New Zealand, Peru, Singapore, the United States, and Vietnam
The TPP, specifically the leak of the IP provisions, has caused an uproar in the
technology community due to concerns that the IP draft is overbroad and seeks to
export what some feel is the worst of the U.S.’s copyright regime to other nations.
This would presumably have a chilling effect on free speech, due process, an open
internet, and innovation
. Another point of concern as voiced by the tech policy
organization Electronic Frontier Foundation [EFF], is that “TPP raises significant
concerns about […] the right of sovereign nations to develop policies and laws that
best meet their domestic priorities.
This issue is most easily understood by
examining the copyright laws of Japan and the cultural creations that might be
threatened if the strict proposals believed to be part of the TPP are enacted in that
In this paper, I will use the genre of doujinshi
(or dojinshi) – self-published
fan art – to illustrate how culture, creativity, and copyright converge to form a

1 Secret Trans-Pacific Partnership Agreement (TPP) - IP Chapter, at
Electronic Frontier Foundation. Trans-Pacific Partnership Agreement, at
In this paper, the term doujinshi refers to fan-created works such as manga,
literature, games, art, books, animation and erotica. “This is a common current use

unique system of symbiosis in Japan that benefits both creators of new works and
original authors. I will explore how enforcement of the TPP’s provisions would
impact the doujinshi community and discuss whether Japan should adopt a Fair Use
provision of its own to allow for transformative uses that protect authors while
allowing innovation and creativity to flourish. To do so, I will examine both the
Japanese Copyright Law and the U.S. Copyright Act’s Fair Use provision to see
whether the latter might be compatible with the former’s legislative intent and
international obligations.
Doujinshi – a Japanese Cultural Phenomenon
Doujinshi refers to self-published works, typically used in reference to
amateur manga (comics), magazines and novels, although it can also include games,
art, books, animation and various items of erotica. These works may not have a huge
following in the U.S. but in Japan and among enthusiasts around the world it is
major business. Recent reports value the genre at 70 billion Yen (about $700
million) and rising
. Manga in Japan are “like air” in that they’re everywhere, totally
ubiquitous to Japanese culture
and doujinshi play a large part in developing the
genre. Understanding doujinshi as a Westerner is probably easiest when analogized

of the term, which originally referred to works, including works other than manga,
for distribution within a specific association or society.” Mehra, S., Copyright and
Comics in Japan: Does Law Explain Why All The Cartoons My Kid Watches Are
Japanese Imports? 55 Rutgers L. Rev. 155 (2002-2003) citing Kinsella, S., Japanese
Subculture in the 1990s: Otaku and the Amateur Manga Movement, 24 J. Jap. Stud.
289, 295 (1998).
Tolentino, J., The doujinshi fanzine industry is worth a lot of money, February 3,
Kinsella, S., Adult Manga: Culture and Power in Contemporary Japanese Society,
(2000) London: RoutledgeCurzon.

to Star Wars enthusiasts or “Trekkies” who attend conferences, post to internet
message boards, and eagerly await and consume any publication, video game,
movie, or other product related to the Star Wars movies or Star Trek series,
respectively. Doujinshi is distinguished from its Western counterparts, though, in
part due to the vastness of it all. According to reports, there are tens of thousands of
doujinshi circles (groups of amateur artists) and Comiket, a biannual manga
convention, boasts upwards of 35,000 circles and over 560,000 visitors displaying,
selling, and consuming amateur creations
As derivative works, doujinshi undoubtedly crosses the line of copyright
infringement in most countries, including Japan, but Japanese copyright holders’
attitudes toward these unauthorized uses is best described as “tacit tolerance”, or
“strategic ignorance.”
The existence and continued proliferation of doujinshi is a
unique and curious phenomenon in which the relationship between doujinshi artists
and publishers of licensed works is governed by an unwritten code of ethics.
Copyright holders create original works and “allow” derivatives to be created. In
return, doujinshi artists work with an understanding that their art should go beyond
mere copying and take a more transformative form.
Law professor and author
Lawrence Lessig explains this transformative standard in his book ‘Free Culture’:
A doujinshi comic can thus take a mainstream comic and develop it
differently – with a different story line. Or the comic can keep the

The Anime News Network, Comiket 82 Ties 'Turnstile' Attendance Record at
560,000, Aug. 13, 2012,
Leonard, S., Progress against the law: Anime and fandom, with the key to the
globalization of culture. International J. of Cultural Stud. 281, 287 (2005).
Lessig, L., Free Culture: The Nature and Future of Creativity. 2004, London:

character in character but change its look slightly. There is no formula
for what makes the doujinshi sufficiently “different.” But they must be
different if they are to be considered true doujinshi. Indeed, there are
committees that review doujinshi for inclusion within shows and
reject any copycat comic that is merely a copy.

Indeed, doujinshi “may also bolster, rather than degrade, the creative and
economic interests of the copyright holder,”
perpetuating interest in a preexisting
franchise for years, sometimes decades after publication. Fan response and
sustained interest can, and has, ensured the continuation of anime and games series.
While some doujinshi artists turn a profit from their infringing use of protected
characters, their success only bolsters the industry’s own prosperity. It appears that
copyright holders engage in a basic cost-benefit analysis, concluding that allowing
doujinshi artists to continue their infringing conduct outweighs the potential
economic loss.
The existence of such an understanding illustrates how the
doujinshi market is allowed to flourish as an expression of fan interest, a breeding
ground for new artists, and vehicle for growth of the manga and anime genres
Additionally, the amateur art scene in Japan is the safe and comfortable
environment in which new talent is nurtured. It has been noted that “enacting,
reciting, and appropriating elements from pre-existing stories is a valuable and
organic part of the process by which children develop cultural literacy.”
children are raised to explore, collect and exchange media content to suit their

Noda, N. When Holding On Means Letting Go: Why Fair Use Should Extend to Fan-
Based Activities. 5 U. Denver Sports & Ent. L.J. (2008).
Mehra, supra note 6.
Jenkins, H. and Kelley, W., Reading in a Participatory Culture: Remixing Moby-Dick
in the English Classroom, New York:Teachers College Press, 2013.

personalities. From that perspective, making fan art is an acceptable way for one to
learn to draw.

While it would not be accurate to characterize all doujinshi as parody, some
do indeed use characters and other aspects of protected works in a way that
“mimics the characteristics of a known work and transforms or recreates that work
in a humorous manner.”
The doujinshi genre taken as a whole, however, is
arguably transformative to the point that they are like new works altogether and
valuable to the market in ways that do not negatively impact the original author.
Japanese courts have acknowledged the “rich cultural heritage of parody and satire”
within Japanese culture, which has enriched Japanese literature and art from the
“satirical 12
century drawings of rivaling Buddhist schools to modern day cartoons
and commercial posters.”
It’s puzzling then that Japanese courts have refused to
acknowledge parodic and non-parodic transformative works such as doujinshi as
legitimate exploitations of copyrighted material
considering the role these types of
works have and continue to play in Japanese culture, particularly as the notion of
“cultural property” is so central to Japanese copyright.

Mehra, supra note 6.
Foster, M., Parody’s Precarious Place: The Need to Legally Recognize Parody as
Japan’s Cultural Property. 23 Seton Hall J. Sports & Ent. L., Art. 2, (2013). Quoting
Parody Definition, Web Dictionary.
Ganea, P. and Heath, C., Eds. “Economic Rights and Limitations”, Japanese
Copyright Law: Writings in Honour of Gerhard Schricker, (2005), The Hague:
Kluwer Law International.

Japanese Copyright Law
The modern iteration of the JCL [hereinafter JCL], or Chosakuken, was enacted in
and last revised in 2012.
Its purpose is to “secure the protection of the
rights of authors, etc., having regard to a just and fair exploitation of […] cultural
products, and thereby to contribute to the development of culture.”
works of authorship for the purposes of the JCL are defined as any "production in
which thoughts or sentiments are expressed in a creative way and which falls within
the literary, scientific, artistic or musical domain".
Such productions include
literary, musical, cinematographic, and photographic works.

Author’s rights provide protection for the rights of reproduction,
distribution, creation of derivative works, making the works public, and exhibition
to name just a few.
These rights are divided into two categories: economic rights
and moral rights, the latter being of an exclusively personal nature that can never be
transferred. According to the JCL, “acts which would infringe moral rights are
prohibited even after the death of the author.”

Tominaga, K. Does Japanese Copyright Law Need Fair Use? Center for Advanced
Study & Research on Intellectual Property, Vol. 16, Issue 3, (2009).
Copyright Information and Research Center [hereinafter CRIC]. History of
Copyright Systems in Japan.
CRIC, Japanese Copyright Law, art. 1, Translated by Yukifusa Oyama et al., 2013.
[hereinafter Japanese Copyright Law]
Id. at art. 10(1)
Id. at art 18-28.
Id. at art. 18-20.

Japan has one of the most complete systems for the promotion of culture in
the world
, viewing copyright as cultural property as well as promoting culture
through legislation such as the Fundamental law for the Promotion of Culture and
Arts (2001).
However, in order to balance the author’s rights with the people’s
cultural enjoyment, the JCL subjects the exclusive rights of authors to a laundry list
of exceptions and limitations.
Exceptions and limitations in the JCL include
“reproduction for private use, reproduction in libraries, quotation privileges, use for
educational purposes, performances for non-profit purposes, use for news reports,
use in political speeches, reproduction in judicial proceedings, exhibition of artistic
works by the owner, and use of artistic works located in public spaces.”

There is, however, no general Fair Use provision, nor one for determining
whether a transformative work such as parody is a permissible use of protected
works. Indeed, Japanese judges have explicitly refused to recognize that the law
contains a general Fair Use exception. Instead, only those uses that fall within the
detailed requirements of one of the specifically enumerated exemptions are free
from infringement.

The broadest exceptions under the JCL that even come close to the type of
exceptions in U.S. Fair Use are found in articles 30 and 32. Article 30 provides for
the reproduction of protectable works for private use (“personal use, family use or

Scott, J. A Comparative View of Copyright as Cultural Property in Japan and the
United States. 20 Temp. Int'l & Comp. L.J. 283 2006
“[P]roviding a comprehensive mechanism for promoting culture and the arts in
Japan. It includes the enhancement of cultural facilities and the protection and use of
copyrights.” Tominaga, supra note 20.
Id. See also Japanese Copyright Law, art. 30-50.
See Ganea, supra note 19.

other similar uses within a limited circle”
). This exception is inadequate to cover
doujinshi and similar works because they are by nature not for private use and enjoy
a very public, widespread popularity. Article 32 allows for “quotations from a work
already made public, provided that their making is compatible with fair practice and
their extent does not exceed that justified by purposes such as news reporting,
criticism or research.”
This is also inappropriate for doujinshi because works in
this genre do not simply quote targeted works, but transform those works into
something new.
Thus amateur, fan-created doujinshi do not currently fall under
any of the enumerated limitations or exceptions of the JCL and continue to exist
subject to the grace of copyright holders.
U.S. Copyright Law
In contrast to the JCL’s focus on cultural property, the goal in the United
States is viewed as largely economic and achieved by balancing an author’s rights
against society’s economic and social progress.
The U.S. Constitution grants to
Congress the power “[t]o promote the Progress of Science and useful Arts, by
securing for limited Times to Authors and Inventors the exclusive Right to their
respective Writings and Discoveries.”
Instead of growing out from a cultural
property framework, there are two assumptions thought to be at the foundation of
the U.S. Copyright Act: “1) that it is to the advantage of an enlightened society to
encourage creative additions to the resource of the public domain, and 2) that

Japanese Copyright Law, art. 30(1)
Japanese Copyright Law, art. 32(1).
Foster, supra note 17.
U.S. Constitution. art. I § 8, cl. 8.

unrestrained and unimpeded replication of intangible intellectual and creative
products is not in the best interests of the community.”

The U.S. Copyright Act protects original works of authorship fixed in a
tangible medium, providing an author with a limited monopoly on a variety of
works including but not restricted to literary works, pictorial, graphic, and
sculptural works, and audiovisual works.
Yet, the Act “does not give a copyright
holder control over all uses of his copyrighted work. Instead, § [106] of the Act
enumerates [six] 'rights' that are made 'exclusive' to the holder of the copyright”

including reproduction, distribution, preparation of derivative works, display, and
public performance.
These rights are subject to a series of limitations similar in
intent and effect to those under the JCL but the U.S. Act goes a bit further by
incorporating the doctrine of Fair Use.
Fair Use Doctrine
Fair Use predates the 1976 Copyright Act by more than a hundred years. In
the mid-nineteenth century, Justice Story laid the foundation in Folsom v. Marsh,
stating, “look to the nature and objects of the selections made, the quantity and
value of the materials used, and the degree in which the use may prejudice the sale,
or diminish the profits, or supersede the objects, of the original work.”
Section 107
of the Act later codified Justice Story’s common law expression, providing that the

Scott, supra note 27.
17 U.S.C. § 102(a)
Twentieth Century Music Corp. v. Aiken, 422 U.S. 151 (1975)
17 U.S.C. § 106
Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994) quoting Folsom v. Marsh,
9. F.Cas. 342 (C.C.D. Mass. 1841)

Fair Use of a copyrighted work […] is not an infringement of copyright,
specifies four fact-specific factors to be considered in a Fair Use analysis:
1. the purpose and character of the use, including whether such use is of a
commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the
copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted

This exception to the exclusive rights granted under §106 allows courts to
distinguish between socially appropriate uses of copyrighted material and illegal
exploitation. The four factor analysis provide guidelines permitting courts the
flexibility to take into account the nuances of specific cases in determining the
propriety of the use in light of the public interest and purpose of the Copyright Act.
The concept of parody maintains a special and often frustrating place in
American jurisprudence. Despite being reviewed by the Supreme Court and
adjudicated in a number of lower courts around the country, parody continues to
confound the enforcement of copyright because it is at once protected speech under
the First Amendment as form of social commentary as well as a potential illegal
exploitation of copyright. Furthermore, there is no hard and fast rule that defines
parody, forcing judges to evaluate whether a derivative is a permitted use on a case-
by-case basis.
In 1994, the U.S. Supreme Court established that a commercial parody could
be deemed Fair Use in Campbell v. Acuff-Rose Music, Inc.
The unanimous Court

17 U.S.C. § 107

defined parody as "the use of some elements of a prior author's composition to
create a new one that, at least in part, comments on that author's works";
commentary function providing the justification for use of the original work.
Instead of enlarging or shrinking the copyright regime intended by Congress,
the Campbell decision helped maintain a flexible, case-by-case analysis,
simultaneously recognizing the value of parody as a form of social criticism and as a
catalyst in literature. Parody plays an integral function as a catalyst in the
continuing development of art. It has been noted that "[t]o decide parody cases
sensibly, courts must recognize the demands of the literary enterprise as an
important interest distinct from the parodist's and the copyright owner's. Literature
needs criticism, . . . and parody is a type of criticism."

The key to any Fair Use-parody analysis is whether the alleged infringing use
is sufficiently transformative. Considering the first §107 factor, the purpose and
character of the use, the question is whether the new work supersedes the original
or transforms it. The Campbell Court noted the genre’s "obvious claim to
transformative value,"
identifying parody as "the use of some elements of a prior
author's composition to create a new one that, at least in part, comments on that
author's works."
Later, the court in Blanch v. Koons (2006),
dictated a similar test
for determining a work’s transformative nature when it considered the matter of an

Campbell, supra note 41.
Babiskin, L. Oh, Pretty Parody: Campbell v. Acuff-Rose, 8 Harv. J. of Law & Tech. 193
(1994). Quoting Bisceglia, J. Parody and Copyright Protection: Turning the Balancing
Act Into a Juggling Act, 34 ASCAP Copyright Law Symposium 1,4 (1987).
Campbell, supra note 41.
Blanch v. Koons, 467 F.3d 244 (2d Cir. 2006).

artist’s incorporation of a photographer’s preexisting work into a new, differently
purposed piece. In Blanch, the proper inquiry was whether the new work "merely
supersedes the objects of the original creation, or instead adds something new, with
a further purpose or different character, altering the first with new expression,
meaning, or message.”

Even when held up against the remaining three §107 factors, sufficiently
transformative parodies tend to pass Fair Use muster. The second factor, the nature
of the copyrighted work, isn’t terribly influential either way because parodies
almost always copy known, public works that are close to the core of copyright.
Parody presents a special case for the third factor, the amount and substantiality of
the use, because by its very nature, a parody must take a portion of the original in
order to be recognizable and succeed in its commentary. The Court in Campbell
recognized this unique posture of parody, stating, “when parody takes aim at a
particular original work, the parody must be able to 'conjure up' at least enough of
that original to make the object of its critical wit recognizable.”

Finally, the last factor, the parody’s effect on the market, cannot be decided
on the commerciality of the parody alone. Often, the parody does not compete in the
same market as the original and the original copyright holder is unlikely to create
derivatives of her own that would lampoon her work. However, if a parody
negatively impacted market demand for the original through its criticism or
denigration, it could fail the fourth factor and perhaps the entire Fair Use analysis.


Trans-Pacific Partnership and Potential Effects on Japanese Copyright
As mentioned above, Japan is one of twelve countries currently undergoing
trade talks as part of the TPP – Trans-Pacific Partnership Agreement. Japan joined
the U.S.-led TPP discussions in 2013 with promises of “prosperity for the future in
the Asia-Pacific” region
. According to the Office of the United States Trade
Representative [USTRO], the TPP was convened to “enhance trade and investment
among the TPP partner countries, promote innovation, economic growth and
development, and support the creation and retention of jobs
.” Key features of the
agreement’s framework include elimination of tariffs and other barriers to trade,
environmental protection, labor rights, telecommunications access, and intellectual
property rights
. At first glance, the IP rights language in the USTRO’s outline seems
innocuous enough. It states that parties to the TPP agreement agree to,
reinforce and develop existing World Trade Organization Agreement
on Trade-Related Aspects of Intellectual Property (TRIPS) rights and
obligations to ensure an effective and balanced approach to
intellectual property rights among the TPP countries […] including
trademarks, geographical indications, copyright and related rights,
patents, trade secrets, data required for the approval of certain
regulated products, as well as intellectual property enforcement and
genetic resources and traditional knowledge
However, the leaked U.S. draft
includes language that can be interpreted as
seeking to impose strict IP standards on TPP members that are not only more

Japan Prime Minister Shinzo Abe Press Conference (Google Translation), March
15, 2013.
Office of the U.S. Trade Representative. Outlines of the Trans-Pacific Partnership
Agreement, 2011.
Trans-Pacific Partnership Intellectual Property Rights Chapter Draft [Hereinafter
TPP Draft]. February 10, 2011.

restrictive than required by current international law but also in some cases, go
beyond existing U.S. IP law standards
Operating under the assumption that the leaked IP provisions are a close
approximation of the legislative changes the TPP might impose, one can see how the
doujinshi community is not alone in perceiving the stepped-up IP provisions as a
threat. The Program on Information Justice and Intellectual Property (PIJIP) at
American University, which is concerned with issues where IP intersects with
international law, open access initiatives and the free flow of knowledge-based
characterized the leaked IP chapters thusly; “[t]he U.S. proposals, if
adopted, would upset the current international framework balancing the minimum
standards for exclusive rights for media and technology owners, on the one hand,
and the access rights of the public, competitors, innovators and creators, on the

The leaked proposal could potentially impact the JCL in five main areas. First,
article 4(1) would permit copyright holders the exclusive right to “prohibit all
reproduction . . . in any manner or form, permanent or temporary (including
temporary storage in electronic form).”
This could potentially supersede the
enumerated limitations on copyright currently codified in JCL articles 30-50. The

10feb2011-us-text-ipr-chapter.pdf. No official version of the U.S.’s proposed IP draft
has been released. However, a number of sources seem to be validating the leaked
version as evidence of what the U.S. has indeed proposed to the TPP. See Electronic
Frontier Foundation, supra note 3; and Wikileaks, supra note 1.
Electronic Frontier Foundation, supra note 3.
Palmedo, M. About Us.
Flynn, S. et al. Public Interest Analysis of the US TPP Proposal for an IP Chapter.
Program on Information Justice and Intellectual Property American University
Washington College of Law. Dec. 6, 2011.
TPP Draft, article 4(1), supra note 56.

TPP Draft also calls for an extension of the term of protection for a work,
performance, or phonogram by 20 years, thereby increasing the current term of 50
years after the author’s life to life plus 70 years.
This raises concerns about the
availability of content if the copyright holder seeks monopoly control of cross-
border distribution.
Additionally, this term extension is more restrictive than what
exists currently in the U.S. Act because while the “TPP sets the specified terms as the
minimum level of protection, […] U.S. law sets this limit as the ceiling of the term.”

Article 4(2) of the TPP Draft would bestow upon Japanese copyright holders the
ability to prohibit parallel importation,
the importation of non-counterfeit goods
into a market and sold without permission from the IP rights-holder to do so in that
particular market.

Third, while Japan already has a notice-and-takedown requirement,
TPP Draft would impose a more stringent takedown obligation similar to that
codified in the U.S.’s Digital Millennium Copyright Act (DMCA),
increasing the
obligation from one in which an alleged infringer has seven days to reply to claims

Id. at article 4(5). See also Japanese Copyright Law, art. 51.
Sutton, M. What Will Japan’s Entry Into TPP Mean for Internet Users? Electronic
Frontier Foundation, July 18, 2013.
Flynn, supra note 51.
TPP Draft, article 4(2), supra note 56.
WTO Glossary. Parallel Imports.
Japanese Ministry of Internal Affairs and Communications. Act on the Limitation of
Liability for Damages of Specified Telecommunications Service Providers and the Right
to Demand Disclosure of Identification Information of the Senders, (2001).
17 U.S.C. §512(c)(1)(C)

to one in which takedown is immediate.
Lastly, and perhaps most chilling to the
doujinshi community, TPP article 15(1) could require officials to contravene an
established Japanese principle known as shinkokuzai, “whereby crimes are not
prosecuted without a formal complaint from the victim,
without proof of actual
Whereas the responsibility for enforcing his or her rights typically lies with
the copyright holder, the TPP criminalizes infringement the duty, expanding
copyright infringement to include “infringements that have no direct or indirect
motivation of financial gain.”
Potentially, the burden and cost of whether to
enforce IP rights shift to the state from the copyright holder under the TPP raising
the potential for state abuse and imbalance of power.
The PIJIP warns that “[t]he U.S. proposals, if adopted, would create the
highest intellectual property protection and enforcement standards in any free
trade agreement to date.”
If the stakes are this high for member countries’
intellectual property, then how will artist communities have any chance?
The Case for Japan’s Adoption of a Fair Use Provision
As the major players in international trade and IP set their sights on
strengthening copyright protections and making them more uniform through
agreements like the TPP, the concept of Fair Use may provide a safe haven of sorts,
leaving states the flexibility of determining permissible uses on a case by case basis.
The U.S. Fair Use doctrine makes for a good foundation on which Japan could base a

TPP Draft, article 3(2)(ii), supra note 56.
Sutton, supra note 62.
TPP Draft, article 15. supra note 56.
Id. at article 15(1)
Flynn, supra note 51.

general provision because it “'permits [and requires] courts to avoid rigid
application of the copyright statute when, on occasion, it would stifle the very
creativity which that law is designed to foster.'"
It is clear that the JCL is designed
to foster the preservation and enjoyment of cultural property. Therefore, adopting
Fair Use, particularly where parody is concerned would help to prevent or mitigate
any stifling of doujinshi and similar works that do not pass muster under a rigid
application of the law but undoubtedly form an important part of Japanese culture.
There are some concerns about the adoption of U.S. Fair Use into Japanese
law such as compatibility with international law obligations, the realities of
Japanese legal culture, and preference for an enumerated, specific provision that
must be addressed:
International Law
Both the U.S. and Japan are parties to the Berne Convention,
international copyright treaty administered by the World Intellectual Property
Organization (WIPO). The Berne Convention article 9(2) sets forth criteria for
creating exceptions to exclusive right of reproduction protection in the form of a
Three-Step Test. TRIPs (Trade-Related Aspects of Intellectual Property”
article 13 incorporates Berne 9(2) and applies the Three-Step Test to
all of the copyright holder’s exclusive rights.
Under the Three-Step Test, member
states shall confine limitations and exceptions to (1) certain special cases (2) which

Campbell, supra note 34 (quoting Stewart v. Abend, 495 U.S. 207 (1990))
Berne Convention. July 24, 1971, S. Treaty Doc. No. 99-27, 1971 WL123138.
Agreement on Trade Related Aspects of Intellectual Property Rights. 1869 UNTS
299; 33 ILM 1197 (1994).
Id. at art. 13.

do not conflict with a normal exploitation of the work (3) and do not unreasonably
prejudice the legitimate interests of the right holder.

Some have argued that the U.S. Fair Use doctrine is incompatible with the
Three-Step Test because “certain special cases” is sometimes interpreted more
specifically, as in “serving a special purpose”. However, in the Irish Music Rights
Organization (IMRO) Case,
the WTO Panel carefully worded its decision to ensure
that “certain special cases” meant clearly defined and limited in field of application
or exceptional in its scope. The panel rejected idea that “certain special cases” meant
that it must serve a “special purpose,” noting that any resulting law need not
explicitly list each and every special circumstance being covered. This language was
carefully chosen so as to avoid future criticism of U.S. Fair Use,
thereby keeping
the doctrine within the acceptable confines of the treaty. Therefore, U.S. Fair Use is
not, on its face, incompatible with international treaty obligations.

Japanese Legal Culture
Another critique of importing Fair Use into Japan is that the country’s civil
law system and legal culture cannot support it. Japan’s civil law system focuses on
legal certainty with courts referring to formalized codes and statutes that determine
how cases ought to be decided.
The case-by-case analysis demanded by Fair Use is
thought to be incompatible with Japan’s civil system where judges don’t have as

Berne Convention, art. 9(2), supra note 75.
United States: Section 110(5) of the US Copyright Act, Report of the Panel, June
15, 2000, (00-2284), WT/DS160/R, at 69, [hereinafter IMRO Case].
Hughes, J. Lecture Notes: Limitations & Exceptions in Copyright Law.
International Intellectual Property – Selected Topics. Cardozo Law School, Autumn
Tominaga, supra note 20.

much discretion. While Fair Use may offer some flexibility on how to decide a case,
the four fact-specific factors provide guidance on how to decide such matters that
could still prove compatible with the civil system. France has a civil system as well
yet also manages to provide for Fair Use/parody within its copyright law. This
should be particularly instructive to Japan since its copyright law draws from
France’s Code de la Propriété Intellectuelle.

Japanese culture is thought to be far less litigious than the U.S. as its citizens
believe that “[t]o pursue litigation disturbs harmony, and therefore is considered to
be shameful.”
If this is true, Japanese Fair Use might prove more frustrating
because it would contravene social norms to bring suit even where one was justified
and fewer cases might be pursued altogether. Furthermore, the Japanese legal
system discourages litigation almost by design with fewer litigation attorneys,
delays in resolving cases, and other institutional barriers.
However, I believe this
to be a moot point if the TPP’s IP provisions are adopted because as discussed
above, the Draft IP provisions would require states to pursue copyright violations
despite the wishes of the copyright holder. Japan should seek to craft its own laws
that would provide a legal remedy if desired while leaving the option open to
resolve disputes outside of the courtroom.
Enumerated vs. General Provisions
Critics of importing Fair Use into Japan cite the certainty and reliability of
enumerated and specific provisions. While it’s true that U.S. Fair Use – once

Foster, supra note 17.
Mehra, supra note 6.

described as “the most troublesome [issue] in the whole law of copyright"
– can be
rather unpredictable, Japan should consider a general Fair Use provision that could
embrace certain transformative works as permissible in order to reflect the belief
that individual expression is integral to Japanese culture.” Lack of a general Fair Use
provision leads to rigid interpretation of the Copyright Law, which may sometimes
lead to unfair results.
Some legitimate work, like reverse engineering of software,
might be foreclosed altogether without a general provision that could take into
account the circumstances under which such reverse engineering took place.

The TPP has important economic implications for its members but Japan
might find that the intellectual property provisions therein could have an undesired,
chilling effect on the types of cultural property the JCL stands to protect and
encourage. Enacting a Fair Use/parody exception before the TPP’s IP provisions go
any further would show the international community that Japan is committed to
constantly updating and improving its copyright regime and proactively protecting
works, while perhaps staving off international pressures for stricter controls that
don’t comport with Japanese culture and/or jurisprudence.
Doujinshi provide just one example of how creations that technically infringe
upon copyright can exist symbiotically with the original works without competing
or usurping the rights of the copyright holder in any meaningful way. Using Fair Use

Dellar v. Samuel Goldwyn, Inc., 104 F.2d 661 (1939)
Sugiyama, K. Japanese Copyright Law Development. Presentation at Fordham
University IP Conference. April 19, 2001.

to create a safe harbor for these types of works relieves copyright holders and the
general public of trying to fit each situation into narrow limitations and exceptions
and instead allows the realities of how and why works are created and used to
determine the outcome. If Japan continues to avoid the Fair Use issue, the
international community might seek to impose stricter, less culturally specific rules.
It will be interesting to watch the development of the TPP, which unfortunately
continues behind closed doors, to determine how much influence foreign nations
will have on Japanese copyright going forward.