What is copyright?
“Copyright” is a word that scares a lot of people. It has a tendency to put customers and uneducated designers on the defensive about what’s “theirs” and their rights. It’s the basis for a lot of misunderstandings, most of which, if I may be so bold, are unnecessary. It’s also one of the most difficult points when assembling a contract.
By the end of this article, you should have a solid understanding of how Japanese copyright affects you and the artwork you order through HBD or another design studio/professional (based in Japan at least).
What does Japanese copyright cover?
Japanese copyright covers works that satisfy all of the following:
- Expresses thought or sentiment…
- …in a “creative” way
- Falls within the literary, artistic, musical or scientific realm
Speaking in (overly?) general terms, as long as the work (A:) satisfies the above three points; (B:) is not produced under “employment”; and (C:) is not (according to the eye of the “average individual”) based off the commissioner’s original piece, the designer can pretty much claim full copyright.
For more detailed descriptions of these points, check out our article about Japanese copyright in practice.
OK. So why is Japanese copyright unique?
While the above paragraph seems to ring similar to other countries’ copyright laws, it’s important to understand that copyright in Japan is different from many countries in that it’s deliberately broken down into two distinctly different categories. Those categories effectively separate the concept of “copyright” as many westerners understand it.
One category gives rights that a designer can give away or release.
The other category is NOT distributable and stays with the designer until that designer passes away.
These rights are relinquishable by the designer (pending the contract says so):
- Reproduction: Can I make copies of it or am I restricted to only the one copy?
- Communication: Can I distribute that original and/or the copies? If so, where and how (paper? screen? etc.)?
- Adaption: Can I translate or convert the work to a different medium? Moreover, can I use it (as is) in collaboration with other artwork?
Moral rights are rights that the designer keeps and a client can’t legally acquire. These rights stay with the author. They are:
- Divulgence: Is it okay to publicize this work or must it remain private?
- Authorship: How should I refer to you as the original artist (pseudonym, anonymity, etc.)? Do I need to attribute it to you?
- Integrity: How much can I change the look of the original work? Does it need to look exactly the same?
Huh? What does that all mean?
Though the points above can be a bit confusing and some of them seem to overlap, the concept is quite easy. First and foremost, depending on the country in which you’re from, you MUST dismiss all understanding you have of copyright until this point. As discussed above, copyright is split into two confoundedly different principles here in Japan:
Moral Rights: “I’m the author. I made this.”
Economic Rights: “I have the copyright” (read “I have the right to copy this”).
Both of these rights (moral and economic) belong to the designer upon the piece’s conception (Japanese law does not require formal dedication of these points—i.e. a contract). Dependent on a contract, however, the author can release the economic rights (the right to copy or reuse) to their customer. Therein, the artist has maintained “authorship” of the piece, yet essentially provided the right to copy to the client.
This is profound. Read that last paragraph again before continuing.
Moreover, the moral rights as discussed above are designed to protect the original author. Many people understand these protections in other terms: “Defamation of Character”, “Unfair Competition”, etc.
Here’s why it’s always such an issue
Some countries encapsulate “authorship” and the “right to copy” under one heading of “Copyright”. Because of this, many designers try their best to maintain that copyright. Imagine if you will, a designer giving up that “authorship”. That means they can no longer say that they created something. Being able to claim authorship of work done is the basis for a designer’s reputation and ability to acquire new work. No “authorship” means no portfolio! Because of that, this “authorship” (and therein, the copyright) is extremely important to designers.
Clients, however, are paying for a product and desire the ability to use the work as they see fit. This is the right to copy. When both needs (authorship and the right to copy) are mixed into one concept, disagreements are common and negotiating can be difficult. Western countries handle this with a concept called “licensing”.
The Japanese system allows not the “sharing” of Copyright, but the separation of it into two different entities. By being in Japan, a designer can maintain authorship while handing you, the client, all the copying rights that you could desire.
How does this affect you: the customer?
What this means is that you’ll need to be clear with your designer.
If nothing is stipulated in the contract, all rights will be given to that designer. While you may think it’s a pain and overkill to have a contract, even for small work, it’s best to sign and agree to one regardless as it will clarify your rights to the work and protect you.
Be clear with your designer about what you need. Ask yourself all of the question words: How, Why, Where, When, What, Who, How many, How long, etc. By having these points clear from the start, the bases will be covered and you’ll get a great product, have a great relationship with your designer and enjoy a great future for your company.
To learn more about the differences between copyright and infringement and how the Japanese courts handle it, please read our article about copyright in practice vs. on paper.
Also, to learn more about Japanese Copyright Law (and if you’re okay with the lingo), please check out the sites below. Send us an email, even. We don’t mind.