Reconsidering the Need for a Parody Exception in the Japanese Copyright Act

The EU Parody Exception as a Source of Inspiration

Abstract

Unlike countries like the United States, Canada, or France, Japan has no legal exception permitting parody (パロディ). Article 32 of the Japanese Copyright Act (‘JCA’) provides only for freedom of quotation. This means that under the current regime, many parodies in principle constitute copyright infringement. The present paper has two major purposes: (1) to investigate how Japan currently deals with (or does not deal with) parody, taking into account the specifics of the Japanese culture, and (2) to demonstrate why and how Japan could benefit from introducing an EU-style parody exception in its JCA. The paper is first and foremost a legal one, but it familiarizes the reader with Japanese cultural concepts, such as niji sōsaku (二次創作), dōjin-shi (同人誌), and aun no kokyū (阿吽の呼吸), all of which are key to understanding the greater context.

Japan has a long tradition of adaptation of poems and, today as well, borrowing the cultural products of others is a socially accepted practice. Against this background, parodies mainly serve as tools to enrich Japanese culture: tools to pay ‘homage’ or to create a ‘remix’, rather than tools to ‘target’ the original work or tools used as a ‘weapon’ for criticism. In other words, ‘remix (‍リミックス) parody’ and ‘homage (オマージュ) parody’ are much more popular than ‘target’ (ターゲット) parody’ and ‘weapon (ウェポン‍) parody’. The first two rarely lead to court proceedings as they are often regulated by social practices. The absence of a parody exception is therefore not so problematic for them. The less prevelant target and weapon parodies, for which courts so far have failed to render convincing judgments, are the main concern.

In regards to its second purpose, the paper undertakes a comparative analysis with EU law, with special attention given to relevant case law. In 2014, the Court of Justice of the European Union rendered the Deckmyn judgment, thereby giving an autonomous and broad meaning to the EU parody concept. The paper does not limit its analysis to this defining event. It tries to capture the bigger picture by also looking at the pre- and post-Deckmyn periods in some EU Member States, with Belgium – the country from where the Deckmyn case originated – standing at the forefront.

The paper concludes by suggesting that an EU-style parody exception could easily and successfully be introduced into the JCA’s closed-system of exceptions and limitations. To this end, the paper offers Japan a concrete proposal, inspired by EU law: a parody provision which holds not only a flexible exception for target and weapon parodies but also the potential of finally establishing an adequate legal basis for remix and homage parodies, without affecting the social practices which lie at their heart.