On February 9, the Japanese Society for Rights of Authors, Composers and Publishers (JASRAC) submitted the following comments regarding the solicitation of public comments on the "Concept of AI and Copyright (Draft)" compiled by the Subcommittee on Legal System of the Copyright Subdivision of the Culture Council .

To ensure the sustainable development of the culture, art, and content business, JASRAC believes that it is important to create an environment where creators can focus on creative activities with peace of mind. JASRAC will continue to study and make proposals toward the realization of a framework for AI utilization that harmonizes with the cycle of creation.


[Comments submitted to the Agency for Cultural Affairs]

1. Comments on "1　Introduction"

In "1. Introduction," the Subcommittee noted that copyright holders, AI developers, AI users, and others have voiced concerns regarding generative AI. It then states in page 2 that "in order to address such concerns... it would be beneficial not only to wait for the accumulation of precedents and judicial decisions, but also to demonstrate certain approaches in interpretation."
However, many of the "certain approaches" actually presented are of a dualistic nature, and since it does not increase the predictability of legal interpretations, we believe the effectiveness towards resolving "concerns" is inevitably limited.
In order to resolve the various concerns arising from the rapid advancement and widespread use of generative AI, we believe it is necessary to promptly conduct a full-fledged study that not only of the current interpretation of provisions but also the legislative considerations.


2　Comments on "2. (1) Consistency with conventional approaches of the Copyright Act"

In the second paragraph of page 4, it states that "in particular, attention must be paid to ensuring that the discussion about AI does not contradict the idea about creative activities conducted by humans without using AI." We believe it is necessary to clarify the foundation of the discussion.
In other words, if we prioritize consistency with the conventional approaches of the Copyright Act, then in the "discussion on AI," we should not lose sight of the fundamental principle that the copyright system is intended to encourage creation as an expression of human individuality, rather than to promote generation by machines.
In relation to this fundamental principle, when it comes to creating expressions by learning from existing copyrighted works, whether through human learning and expression or through AI generation, we believe that the scope and nature of protection should not be seen as a "contradiction" but rather as natural consequence, considering the purpose of the copyright system.


3　Comments on "5. (1) エ (イ) The generation of a large number of reproductions that are only similar in ideas, etc."

A. The Draft is based on a dichotomy between "ideas" and "creative expression (the essential characteristics of expression)" as seen in statements such as "at the level of ideas that do not lead to expressions, the creators have their so-called 'style' in common" (page 17) and "the ideas such as style and painting style are only similar" (page 20), this Draft categorizes style as belonging to ideas and concludes that it is "not an interest protected by the Copyright Act" (same page).

B. Based on this premise, the following conclusion has been made in page 20 regarding the interpretation of the proviso to Article 30-4 of the Copyright Act: "While it is conceivable that a situation may arise where the demand for specific creator or work could be substituted by AI-generated creations due to the generation of a large number of reproductions that are only similar in ideas, etc., which are not the interests protected by the Copyright Act, if such AI-generated products do not share the same creative expression of the original learning source, they are not considered to fall under 'cases where unfairly impairing the interests of the copyright holder' under the Copyright Act."

C. However, the summary of style as belonging to ideas is nothing but a theoretical argument that fails to consider the creation. Even when creators work with the same idea (for example, creating a graduation song that incorporates elements of sorrow while instilling hope for the future), the specific expressions (lyrics and music) differ from the creator to creator because the individuality that plays a major role in sublimating the idea into expressions is different, and the personality that determines the characteristics of the specific expressions is the essence of the style. Therefore, style should not be seen as belonging to ideas but rather as an intermediary between ideas and expressions (Imagine the progression as "idea → style → specific expression").

D. In the first place, the design of the copyright system to protect only specific expressions was intended to encourage creation as an expression of human individuality. If that is the case, then it would be more in line with the significance of the copyright system to protect not only specific expressions but also the style, which could be considered as the very essence of the creator's individuality, in the context of relations with AI that merely engage in mechanical generation rather than the expression of individuality.

E. In addition, it should not be ignored that concerns have been raised by CISAC (International Confederation of Societies of Authors and Composers) and others regarding the potential harm to creators' livelihoods due to AI-generated output, which, having learned from creators' copyrighted works, can produce a large amount of output much faster and at lower cost than the creators themselves, regardless of the similarity of creative expressions or styles.

F. Even if the style of the work is considered to be an idea (thoughts or sentiments), Article 30, paragraph 4 of the Copyright Act is a limitation on rights that applies to "cases where the purpose is not to enjoy the thoughts or sentiments expressed in the copyrighted work oneself or allow others to enjoy them." Thus, it should be understood that the analysis of information (AI learning) aimed at enjoying (partially) the and other "expressed thoughts or sentiments" (such as generating similar styles of output) is not covered by this provision.

G. In light of the foregoing, at least in cases where AI-generated output with similar styles is produced in large quantities, resulting in the potential replacement of specific creators or works by AI-generated products, it should be specified in this Draft that such case falls under "unjustified harm to the interests of the copyright holders." Moreover, it should be noted that the acts of reproductionsor other uses carried out by such generative AI during the development and learning stages should not be subject to restrictions.

H. Similarly, it should be explicitly stated that similar styles can also be an important factor in determining the similarity during the generation and utilization stages in relation to AI-generated output.


4　Comments on "5.(2) イ (イ) The notion of dependability"

A. JASRAC agrees with the notion in page 30 that "if an AI user was not aware of an existing work (its expression content), but learned the work during the development and learning stages of the relevant generative AI, it is objectively recognized that the AI user had access to the relevant work. Therefore, if a product similar to the relevant work is generated by using the generative AI, it is generally inferred that there was dependency, and can be considered copyright infringement."

B. In order to make this notion effective, it is necessary to ensure transparency regarding learning materials, such as the establishment of a system that enables right holders to easily confirm and claim the fact that their own works, etc. have been used in the learning. After examining the effectiveness of Article 114-3 of the Act (Submission of Documents, etc.), the Order to Submit a Document under the Code of Civil Procedure (Article 223, paragraph (1) of the same Act), the Commission the Sending of a Document (Article 226 of the same Act), etc." (page 34), it is crucial to continue to consider measures, including new legislative measures, as necessary.

C. On the other hand, JASRAC cannot agree with the notion in page 30 that in cases where "technical measures are taken to prevent creative expressions of a work used for learning in the development and learning stages from being generated at the generation and utilization stages," "even if an existing work is learned in the development and learning stages of such generative AI, it is considered possible that there may be cases where it is determined that there is no dependency." It should be considered that "as long as the AI has learned the work used for learning in the development and learning stages in the past, even if such measures have been taken, no dependency can be denied" (footnote 37, page 30).


5　Comments on "5.(4) Other points in dispute"

A. It is stated in page 36 that "with regard to the act of distributing a work that is not a copyrighted work under the pretext of being a copyrighted work, if such act is conducted in the context of a transaction such as a license agreement for a work, it may not only give rise to a contractual liability for default, but also result in tort liability under the Civil Code on the grounds of deceiving the counterparty to the transaction into delivering property, such as the price for the use. In addition, there is a possibility that it may fall under a crime of fraud under the Penal Code. In this regard, the relationship with copyright, such as whether protection under the Copyright Act is appropriate or not, should continue to be discussed." JASRAC thinks that it is crucial to actively consider the actions to take in accordance with the Copyright Act.

B. Pursuing tort liability is not highly effective due to the heavy burden on the plaintiff, and even cases that lack some of the constitutive requirements for fraud (i.e., (1) deception, (2) Misconception by the other party, (3) act of disposition based on misconception, and (4) transfer of property or profits) (especially (3) and (4)) must be deterred. From the perspective of enhancing its effectiveness and ease of understanding for the public, JASRAC believes that it is highly significant to address these issues under the Copyright Act, which is the most relevant.

C. Effective deterrence measures should be considered, including the establishment of new penal provisions in the Copyright Act.


6　Comments on "6. Conclusion"

A. Creators and other rights holders have expressed various concerns about the use of works for the development and learning of generative AI (pages 12 and 13). Many of these concerns stem from deviations from the original idea that the copyright system should protect and encourage creation as a manifestation of human individuality, not a mechanical generation by AI.

B. In this regard, since this Draft attempts to summarize the scope, etc., on the provisions of Article 30-4 of the current Copyright Act (a provision that restricts rights) to be applied to the use of works in the development and learning of generative AI (page 15). Thus, no matter how the scope is summarized, it cannot fundamentally resolve the concerns of creators and other rights holders.

C. Works created as a manifestation of human individuality should not be treated as mere data for generative AI. At the very least, there should be an opportunity for creators and other rights holders to determine whether their works can be used as learning materials or not (ensuring opportunities for choice). In particular, the provisions of the current law that can be read as allowing, in principle, free use of copyrighted works even for the purpose of developing generative AI for profit is not fair, as it invites free-riding on the hard work, talent, and effort of many creators.

D. The following statements have been made in page 37: "Regarding the relationship between AI and copyright, it is expected that specific cases, including precedents and judicial precedents concerning copyright infringement, etc., development of AI and related technologies, as well as the progress of studies in other countries will be expected, and it is necessary to continue to discuss the issue in light of these factors." "It is necessary to discuss measures on how to respond to new technologies such as AI over the medium to long term, including general issues from the perspective of the basic principles of the Copyright Act and the legislative purpose of each provision, including Article 30-4 of the Act." We strongly hope that the discussion will not be limited to interpretation based on the current Copyright Act, but will include legislative theory (e.g., the revision of Article 30-4) as soon as possible.