The Flexible Copyright Exception for ‘Non-Enjoyment’ Purposes ‒ Recent Amendment in Japan and Its Implication

Abstract After the long discussions in Japan over the introduction of a general clause on copyright exceptions since 2007, the ‘flexible’ provisions on copyright exceptions (Arts. 30-4, 47-4 and 47-5) were finally introduced into the Japanese Copyright Act in 2018 and came into effect in 2019. They differ widely from the US fair use clause and the UK fair dealing provisions. This article focuses on Art. 30-4, which comprehensively allows an exploitation of a work that is aimed at neither enjoying nor causing another person to enjoy the work. In particular, any exploitation for text-and-data mining (TDM) is widely permitted by any means under Art. 30-4, including for commercial purposes. The underlying theory behind this relates to the nature of copyright, or the justification for copyright protection that an exploitation not for ‘enjoyment’ purposes is beyond the inherent scope of copyright because it does not prejudice the opportunities of the copyright holders to receive compensation. While this might sound unusual, it is interesting to note that some similar theories can be found in Europe, some of which try to widely exclude TDM activities from the scope of copyright based on the idea of ‘a use as a work’. Considering such common characteristics of the theories regarding copyright and ‘enjoyment’ of a work, Art. 30-4 of the Japanese Copyright Act and the theoretical justification for it might have implications for other jurisdictions regarding copyright exceptions or the substantive scope of copyright.