New AI Guidelines for Business in Japan

Until now, Japan was considered a paradise for the development of AI models, especially in the view of copyright. The new AI Guideline has now been published since 19 April 2024. Is it permitted in Japan to train an artificial intelligence with copyrighted works by artists without obtaining consent?

Japan is known to be very open to AI development

Japan is considered to be very open to AI innovations, especially for the development of AI models, a "machine learning paradise". This is because, unlike in many other countries where AI models are developed, no authorisation is generally required in Japan for the use of copyrighted material to train AI models. If another person's work is used to train an AI and a third party uses this generative AI to create images or texts, this is not directly considered an infringement of copyright.

In current Japanese copyright law, this is mainly based on Article 30.4, which allows the recording and analysis of copyrighted material for AI learning in order to promote creative innovation in AI. According to Article 30.4, this is permitted as long as it is "not for enjoyment". It is therefore possible in Japan to use copyrighted works
- to test the development or practical application of technologies (e.g. audio recording, video recording)
- when used to analyse information (i.e. extracting, comparing and classifying information in relation to speech, sounds and images)
- and in the process of information processing by a computer, provided that the provision takes place without human perception of the creative expression of the work.

Moreover, "reproduction for private use", "reproduction in libraries etc. and transmission via the Internet" and "use of works for non-profit purposes and free of charge" are also considered circumstances in which it is possible to use copyright-protected works without the consent of the rights holder.

But how should this be assessed in relation to generative AI? Can well-known manga illustrators or the film style from the Marvel stories be used without permission as training for AI so that the AI creates a similar work in this style?

Article 30.4 deals with the development and training for AI developments, but not with the possible output that can be created in this way.

New AI guideline in Japan - with regard to generative AI

The Ministry of Economy, Trade and Industry (METI) and the Ministry of Internal Affairs and Communications (MIC) therefore have updated the existing Japanese AI guidelines - particularly with regard to generative AI.

These are the following AI guidelines:
AI R&D Guidelines (2017; MIC), AI Utilisation Guidelines (2019; MIC) and Governance Guidelines for Implementation of AI Principles Ver. 1.1 (2022; METI).

The new "AI Guidelines for Business Ver1.0" in Japan, published on 19 april 2024, was formulated for companies, including central and local governments, to manage the social implementation and governance of AI. The AI regulations from Japan differ from those of the EU and the US, but the new guideline also contains direct references to international AI guidelines such as the EU's AI Act.

AI Guidelines for Business Ver1.0 in Japan – what’s new?

METI and MIC have positioned themselves with regard to generative AI innovations in their new "AI Guidelines for Business Ver1.0". In it, they commit to the continued recognition and consideration of Article 30.4 in copyright law. Nevertheless, the scope of use of copyrighted material for AI training without the consent of the copyright holder is restricted compared to previous interpretations.

Independent style may not be used without consent

According to Article 30.4 of the Copyright Act, it would be permitted to train an artificial intelligence using existing works by various artists. However, this does not apply if the learning process is centred on a single creator, i.e. if an independent style can be identified.
A group of copyrighted works created by the same person can be considered a distinct style, all the more so as these works usually all have special details and thus represent a unique "creative expression". If an AI were to be trained under these circumstances and the reproduced result reflects the creative expression of a specific creator, this would constitute a copyright infringement that can be prosecuted with appropriate legal remedies in Japan.

For example, if a painting in the style of Picasso is created with the help of a generative AI that has learnt paintings by various artists, this does not constitute copyright infringement. However, if an image similar to Picasso's work is created and published publicly, this could constitute copyright infringement.

Copyright infringed "in an unfair manner"

According to Article 30.4 of the Copyright Act, it is also not permitted to use copyright-protected works for the development of AI models if this unfairly infringes the interests of copyright holders. However, what this means in practice is largely unclear.

The new AI Guideline mentions, among other things, the possible scenario in which copyright holders take technological measures to protect material, e.g. in the data management and restriction function.

The new AI Guideline also refers to the enjoyment by a work. If the AI is made to learn for the purpose of entertaining the user, this may constitute copyright infringement. However, AI training with a copyrighted work for the purpose of improving the performance of a generative AI might not constitute copyright infringement.

How is the new AI guideline from Japan be assessed?

This AI Guideline is a guideline, but not the Japanese law. The draft also explicitly implies that this guideline is to be further developed and updated in order to keep pace with technological progress, especially in generative AI modelling.
The upcoming judgements of the Japanese courts are interesting to evaluate the new AI Guideline in Japan.

Do you have any questions about innovation with AI application? Our patent law firm Köllner & Partner has a highly qualified team and offers a lot of expertise in this regard, f.e. the DABUS Project.

Contact us without any obligation, by phone at +49 69 69 59 60-0 or send us an email info@kollner.eu.