JPAA Discussed Copyright Issues amid Rising Attention to the Breakout of Generative AI

November 2023

On August 4, 2023, Japan Patent Attorneys Association (JPAA) reportedly held a briefing session to media to review recent issues and questions of copyright which are increasingly highlighted by the breakout of generative AI, and also to explain their stands.  This article is a summary of what the JPAA reportedly discussed.

Features of Japanese Copyright Law

In Japan, requirements for existence of copyright protection and/or criteria for judging whether to violate copyright are not clarified by administrative bodies, such as in guidelines.  It is only courts which judge copyright existence and copyright infringement in Japan.  For this reason, the predictability and clarity of the judgments on those two issues tend to be relatively low.  During the briefing session, the JPAA introduced some copyright infringement cases involving the similarity of images and graphics, where the court decisions differ from conventional thinking.  They also explained that there are a number of views that the current copyright law is impractical to resolve such copyright issues in relation to generative AI, given that only the courts deal with and judge copyright issues and that the AI development and creation are rapidly growing.

Having explained such features of copyright in Japan, the JPAA then identified the following issues and ways of avoiding risks in relation to generative AI.

Risks in the Learning Stage

There should be no less than a number of creators who do not wish to have AI learn their creations, or who wish to obtain compensation if the creation is learnt by AI.  However, it is not clear whether copyright exists in the creations that the AI has learned, nor is it possible to determine whether the AI has learned the subject creation at all if the developer of the foundation model program does not disclose the learning contents.  Moreover, even if those were identified, it is technically difficult to remove the learning part from the results.  Considering such problems, developers using generative AI are required to cooperate in disclosure and transparency of the learning contents.

Challenges and Risk Aversion in the Generating Stage

Can copyright exist on AI-generated contents?

Mainstream view is that copyright cannot arise on AI-generated content under the Japanese copyright law.  This is because the purpose of the copyright law is to secure the right of authors, who are defined as “a creator who creates copyrighted material”, i.e. “a human being”.  On the other hand, copyright may arise on contents that are created by a human using AI as a supplemental tool.  Therefore, when considering a copyright deal, it is important to create contents using AI in such a way that copyright arises on it.  In particular, the purpose of the creation, the AI to be used, the author and the method of creation should be clarified.  In addition, it could also be effective to preserve evidence of the creation process through preservation tool, such as timestamps, as it may be difficult to determine the existence of copyright if the concrete creation process is not identified.

Possibility that an AI-generated material may infringe the other person’s copyright

When AI-generated material is published, there is a risk that the material may infringe the copyright of others.  Again, the record of the creation process is important.  If it cannot be shown at trial that the material was created by combination of several detailed requests, rather than by the mundane request, then the verdict may be against you.

In addition, similarity of the author’s style and idea, which are not protected by copyright, may raise a controversy, such as “emotionally unacceptable”, which may lead to social media disaster.  This could be tremendous damages.  Even if problem cannot be found in terms of copyright, the preparation of a preliminary consent with the person concerned cannot be neglected.

Importance of taking measures

Thus, there are a number of risks that can arise from using generative AI.  The JPAA recommended that some of the cost and time which are saved by using generative AI should be considered to spend to avoid these risks.

Meanwhile, on October 4, 2023, the Japanese government launched the first council meeting on “IP Protection in the Era of Generative AI”.  The aim is to summarize the issues by the end of this year in order to formulate measures against copyright infringement by using generative AI.