Copyright Act

If, at the time a person is transferred the original or a copy of a work (excluding a copy of a cinematographic work (if the work is one that has been reproduced in a cinematographic work, this includes copies of the cinematographic work); the same applies hereinafter in this Article), a sound or visual recording of a performance, or a copy of a phonogram, the person does not know that the original or copy of the work, sound or visual recording of the performance, or copy of the phonogram does not fall under any of the items of Article 26-2, paragraph (2); Article 95-2, paragraph (3); or Article 97-2, paragraph (2), respectively, and is not negligent in having failed to learn this, such person's transfer of the original or copy of the work, the sound or visual recording of the performance, or the copy of the phonogram to the public is deemed not to constitute an infringement of the rights set forth in Article 26-2, paragraph (1); Article 95-2, paragraph (1); or Article 97-2, paragraph (1).

If a copyright owner, etc. claims compensation for damage incurred due to infringement, against a person that has, intentionally or due to negligence, infringed the owner's copyright, print rights, or neighboring rights (referred to as an "infringer" in this paragraph), and the infringer has transferred an object made by the act of infringement (referred to as an "object made by infringement" in item (i)) or has made a public transmission that constitutes the act of infringement (including, in the case of automatic public transmission, making available for transmission; referred to as an "infringing transmission to the public" in that item), the total of the amounts set out in the following items may be treated as the amount of damage incurred by the copyright owner, etc.:

the amount obtained by multiplying the portion of the number transferred, etc. (meaning the number of objects made by infringement transferred by the infringer and of copies of works or performances, etc. made by the public receiving infringing transmissions to the public made by the infringer (referred to as "received copies of an infringing transmission" in this item); the same applies in the following item) that does not exceed the number commensurate with sales capacity (meaning the number commensurate with the capacity of the copyright owner, etc. to perform the acts necessary for selling the object made by infringement or the received copy of an infringing transmission if the owner were to sell them; the same applies in that item) (or, if there are circumstances under which the copyright owner, etc. is unable to sell a number equivalent to all or part of that portion, the number remaining after deducting the number equivalent to those circumstances (referred to as the "specified quantity" in that item)) by the amount of profit per unit quantity of the goods that the copyright owner, etc. could have sold had it not been for the act of infringement;

if, within the number transferred, etc., there is a number exceeding the number commensurate with sales capacity or a specified quantity (excluding where it is found that the copyright owner, etc. could not have exercised the copyright, print right or neighboring right), an amount equivalent to the amount of money that the owner should have received in connection with the exercise of the copyright, print right or neighboring right in accordance with those numbers.

If a copyright owner, the owner of print rights, or the owner of neighboring rights claims compensation for damage incurred due to infringement, against a person that, intentionally or due to negligence, infringes the owner's copyright, print rights, or neighboring rights, and the infringer has made a profit from the act of infringement, the amount of that profit is presumed to be the amount of damage that the copyright owner, the owner of print rights, or the owner of neighboring rights has incurred.

The copyright owner, the owner of print rights, or owner of neighboring rights may fix the amount of damages incurred as being equivalent to the amount of money that the owner should have received in connection with the exercise of the copyright, print right or neighboring right, and may claim compensation therefor against a person that, intentionally or due to negligence, infringes the owner's copyright, print rights or neighboring rights.

If the copyright owner or owner of neighboring rights claims compensation for damage pursuant to the provisions of the preceding paragraph against a person that has infringed the owner's copyright or neighboring rights and the copyright or neighboring rights are managed by a copyright management service under a management entrustment agreement provided for in Article 2, paragraph (1) of the Act on Copyright, etc. Management Service, the copyright owner or owner of neighboring rights may fix the amount provided for in the preceding paragraph using the amount of royalties for the work associated with the copyright or neighboring rights, calculated based on those of the provisions of the royalty rules established by the copyright management service that are provided for in Article 13, paragraph (1) of the Act which are applicable to the circumstances of the exploitation of the work associated with the act of infringement (if there are several methods for calculating that amount, this means the largest of the amounts calculated based on those methods).

In finding the amount equivalent to the amount of money that should have been received in connection with the exercise of the copyright, print right or neighboring right provided for in paragraph (1), item (ii) and paragraph (3), the court may take into consideration the consideration that the copyright owner, etc. would obtain if, on the premise that there had been an infringement of the owner's own copyright, print right or neighboring right, the copyright owner, etc. were to reach an agreement with the person that infringed that copyright, print right or neighboring right on the consideration for the exercise of those rights.

The provisions of paragraph (3) do not preclude any claim to compensation for damage in excess of the amount referred to therein. In such a case, the court may consider the absence of intent or gross negligence by the person that infringed the copyright, print rights, or neighboring rights, in fixing the amount of compensation for the damage.

In litigation involving infringement of the moral rights of an author, a copyright, print rights, the moral rights of a performer, or neighboring rights, if the adverse party denies the specific circumstances of the thing that is being asserted, by the author, copyright owner, owner of print rights, performer, or owner of neighboring rights, to constitute an act of infringement or to have been made through an act of infringement, the adverse party must clarify the specific circumstances of the adverse party's own actions; provided, however, that this does not apply if there are reasonable grounds for the adverse party not being able to clarify these.

In litigation involving infringement of the moral rights of an author, a copyright, print rights, the moral rights of performers, or neighboring rights, the court, at the petition of a party, may order a party to submit documents or electronic or magnetic records that are needed to prove the relevant act of infringement or to calculate the damage caused by the relevant act of infringement; provided, however, that this does not apply if the person in possession of such documents or the person with the authority to use such electronic or magnetic records has just cause for refusing to submit them.

If the court finds it necessary for determining whether or not the documents or electronic or magnetic records subject to the motion under the main clause of the preceding paragraph fall within the scope of documents or electronic or magnetic records referred to in the main clause of the same paragraph or whether or not there are reasonable grounds as provided in the proviso of the same paragraph, the court may have the holder of the documents or a person with the authority to use the electronic or magnetic records present those documents or electronic or magnetic records to the court. In this case, no person may request the disclosure of the presented documents or electronic or magnetic records.

In a case referred to in the preceding paragraph, if the court finds that it is necessary to disclose a document or electronic or magnetic record referred to in the second sentence of the preceding paragraph and hear opinions with regard to whether the document or electronic or magnetic record submitted upon filing the petition referred to in the main clause of paragraph (1) constitutes the document or electronic or magnetic record referred to in the main clause of the same paragraph or whether the just cause provided for in the proviso to the same paragraph is present, the court may disclose that document or electronic or magnetic record to the parties, etc. (meaning the parties (or if a party is a corporation, its representative), or the parties' agents (other than litigation representatives and assistants in court), employees, or any other worker; the same applies in Article 114-6, paragraph (1)), their litigation representatives, or their assistants in court.

In a case referred to in paragraph (2), if the court finds that it is necessary to disclose a document or electronic or magnetic record referred to in the second sentence of the same paragraph and hear an explanation based on expert knowledge, the court may disclose the document or electronic or magnetic record to a technical adviser as provided in Part I, Chapter V, Section 2, Subsection 1 of the Code of Civil Procedure, with the consent of the parties.

The provisions of the preceding paragraphs apply mutatis mutandis to the presentation of the object of any inspection that is necessary for proving the relevant act of infringement in litigation involving infringement of the moral rights of an author, a copyright, print rights, the moral rights of a performer, or neighboring rights.

In litigation involving infringement of a copyright, print rights, or neighboring rights, if, at the petition of a party, the court orders an appraisal of particulars that are necessary for calculating the damage caused by the relevant act of infringement, the parties must explain the particulars necessary for such appraisal to be made to the appraiser.

When damage is found to have been incurred in litigation involving infringement of a copyright, print rights, or neighboring rights, if, due to the nature of the relevant facts, it is extremely difficult to prove the facts that are necessary for proving the amount of damage, the court may approve a reasonable amount of damage based on the overall gist of oral proceedings and the results of the examination of evidence.